author: JUSTICE McNAMARA

text:
    WILLIE G. SWINDLE, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Decatur School District No. 61 et al., Appellees).
    Fourth District
    No. 4—84—0099WC
    Opinion filed August 7, 1984.

      David A. Dvorak, of Burger, Fombelle, Dvorak, Baxter & Zachry, P.C., of Decatur, for appellant.
    Michael J. Kehart, of Welsh, Kehart, Shatter & Hughes, P.C., of Decatur, for appellees.
   JUSTICE McNAMARA

delivered the opinion of the court:

Petitioner, Willie Swindle, filed two claims seeking compensation for injuries sustained while in the employ of respondent, Decatur School District No. 61. Regarding the first claim relating to an accident on March 31, 1978, an arbitrator awarded petitioner 555/? weeks of temporary total disability; permanent partial disability for 100% loss of use of the left hand; 15 weeks each for serious and permanent disfigurement to the left and right leg; and seven weeks for serious and permanent disfigurement to the left arm. Regarding the second claim, the arbitrator found that petitioner failed to prove he sustained an injury arising out of and in the course of his employment on May 14, 1979. Both sides requested review, and on review, the Industrial Commission reduced the awards for disfigurement to the left and right leg to five weeks each and to the left arm to four weeks, and affirmed the decision of the arbitrator in all other respects. The circuit court of Macon County confirmed the decision of the Commission. Petitioner appeals.

On appeal petitioner contends that he established a causal connection between his back and leg problems and the March 31, 1978, accident; that he is entitled to temporary total disability for his back and leg problems and compensation for related medical bills; that he is totally and permanently disabled; that he is entitled to additional compensation for respondent’s failure to continue paying compensation after the arbitration hearing; and that the Commission’s reduction of the arbitrator’s award for serious and permanent disfigurement is not supported by the evidence. Petitioner has not appealed the decision of the Commission finding that his lower back injury did not arise out of and in connection with an accident on May 14, 1979, his last day of work.

At the hearing before the arbitrator, petitioner testified that on March 31, 1978, he was injured while working as an electrician for respondent. While cleaning near a generator, his shirt sleeve was caught in a fan, causing his left hand to be jerked into the fan. Petitioner was hospitalized for his severely injured hand and upon his request was treated by Dr. David Barnes. Dr. Paul Weeks, a specialist in hand surgery and rehabilitation, performed multiple surgeries on petitioner’s hand.

Petitioner further testified that on April 23, 1979, he was released to return to work by Dr. Barnes. Dr. Barnes placed no restrictions on petitioner, except that since his left hand would not function normally, he was not to place himself in a position where his other extremities would be threatened. Petitioner stated that from the date of the 1978 accident to the hearing date, he had constant pain in his lower back, left hip and left leg, and numbness in his left leg. On May 14, 1979, while lifting some materials at work, petitioner stated the pain became so severe he had to stop working. Petitioner called Dr. Barnes, who referred him to Dr. Joseph Sch-rodt, an orthopedist. Petitioner saw Dr. Schrodt once in May, and again in July 1979, and was given a back brace to wear.

On cross-examination, petitioner stated that he did not tell Dr. Barnes about the pain in his lower back and leg until May or July 1979. He never mentioned any such pain to Dr. Weeks.

Petitioner’s wife testified that petitioner experienced lower back and leg pain and numbness constantly since his initial hospitalization. One nurse’s notation on April 25, 1978, states that petitioner complained of severe back pain and that the pain subsequently eased.

Dr. Barnes, petitioner’s treating physician, testified by means of an evidence deposition that the first complaint he was certain he received from petitioner about his back and leg pain was in July 1979, approximately 16 months after the accident. Dr. Barnes testified that assuming sufficient torque or twisting motion, the generator accident could have caused petitioner’s back problems. He also stated that the considerable force thrust on petitioner’s hand did not mean that such force was exerted on his back as well.

Dr. Schrodt reported that petitioner told him he first noticed his back and leg pain in December 1978 or January 1979, after he became more active. Dr. Schrodt diagnosed a disc syndrome along with spondylolisthesis. Spondylolisthesis is a developmental condition of the lower back whereby one vertebra slips over another. Petitioner had this condition before the generator accident. Dr. Schrodt reported that although it was possible for trauma to cause aggravating symptoms of spondylolisthesis, it was impossible for him to establish the cause of petitioner’s back pain because he did not treat petitioner’s initial hand injury. On July 16, 1979, he reported petitioner’s improved condition.

Dr. Joseph Ankenbrandt, an orthopedist, examined petitioner on October 2, 1979. He reported that petitioner told him he experienced back pain for the past 10 months. Dr. Ankenbrandt reported further that the length of time between the accident and petitioner’s stated onset of back pain suggested that the accident had not aggravated his spondylolisthesis condition. Petitioner’s back motion indicated very minimal impairment, so that Dr. Ankenbrandt believed petitioner could return to work without restrictions.

At the hearing on review, petitioner testified that in May 1980, without referral by any doctor, petitioner saw Dr. Kaufman. Dr. Kaufman testified by means of an evidence deposition that he diagnosed a herniated disc along with spondylolisthesis. Dr. Kaufman, along with Dr. Menguy, performed a laminectomy and fusion surgery. Dr. Kaufman opined that, based upon petitioner’s statement that he had back and leg pain since the date of the accident and had no problems prior to that time, there was a causal connection between the 1978 accident and his back problems. In December 1980, petitioner was released to work without limitation. Dr. Kaufman found petitioner’s post-operative recovery to be excellent and that he had no significant disability.

Petitioner testified that, after he received his medical release, he spoke with his supervisor, Harry Kemper, about returning to work. He stated that he showed Kemper the return-to-work slip and was told it was not good enough. Kemper said the work slip had to state specifically that he could work full time and was not limited to light work. On cross-examination, petitioner stated that he did not think he actually showed Kemper the return-to-work slip.

Kemper testified that petitioner never gave him a return-to-work slip following his back surgery. Petitioner never requested to return to work, and respondent never refused to allow his return to work.

Petitioner initially contends that the Commission’s decision that he failed to prove a causal connection between his lower back problems and the 1978 injury is against the manifest weight of the evidence. Petitioner urges that the medical evidence on the issue of causation is not conflicting and requires a finding of causation. The record does not support his contention. While Dr. Kaufman stated that petitioner’s lower back problems were caused by the injury and Dr. Barnes testified that the accident could have caused the back condition, Dr. Ankenbrandt stated that the length of time between the accident and petitioner’s stated onset of back pain indicated that there was no causal relationship. Dr. Schrodt stated that it was impossible for him to make the causal determination.

It is the responsibility of the Commission to determine whether a causal relationship existed between petitioner’s back problems and the accident. (Steiner v. Industrial Com. (1984), 101 Ill. 2d 257, 461 N.E.2d 1363.) In making that determination, it is within the province of the Commission to judge credibility, resolve conflicting medical testimony and draw reasonable inferences from the evidence. Steiner v. Industrial Com. (1984), 101 Ill. 2d 257, 461 N.E.2d 1363; Lambert v. Industrial Com. (1980), 79 Ill. 2d 243, 402 N.E.2d 617.

The decision of the Commission that the 1978 injury was not the cause of petitioner’s back problems finds ample support in the evidence. Petitioner did not complain of back pain to any of the four doctors who treated him until 14 months after the accident, despite the fact that he claimed back pain since the date of the accident. Petitioner had a developmental back condition before the accident, and it was uncontradicted that his condition could give rise to disc problems without trauma. Dr. Ankenbrandt’s opinion of no causation was consistent with these facts. That a court might have drawn different inferences from the evidence is not relevant, since a reviewing court will not disregard or reject permissible inferences from the evidence. (Steiner v. Industrial Com. (1984), 101 Ill. 2d 257, 461 N.E.2d 1363.) The Commission’s decision that the 1978 injury was not causally related to petitioner’s back condition is not contrary to the manifest weight of the evidence. Accordingly, its decision denying petitioner temporary total disability and medical bills for his back condition was also proper.

Petitioner also contends that he is totally and permanently disabled due to the March 31, 1978, accident. A claimant is totally and permanently disabled when he is unable to make some contribution to the work force sufficient to justify the payment of wages. (Interlake, Inc. v. Industrial Com. (1981), 86 Ill. 2d 168, 427 N.E.2d 103.) Although a claimant is not required to prove total incapacity or helplessness for a complete disability award, a claimant capable of obtaining gainful employment without danger to his health or life is not totally disabled. Interlake, Inc. v. Industrial Com. (1981), 86 Ill. 2d 168, 427 N.E.2d 103.

While petitioner sustained a severe and permanent injury to his left hand for which he was granted an award for complete loss of the use of that hand, he has not shown that he is totally and permanently disabled. After petitioner’s left hand was relegated to a helper status, he was released by his doctor to return to the same job he had at the time of the accident. Petitioner returned to work for three weeks and did not leave work because his left hand precluded him from work. Rather, he left work because of a back injury which was unrelated to his employment, and despite overwhelming evidence that he was able to work. The Commission’s decision denying petitioner an award for total permanent disability is not contrary to the manifest weight of the evidence.

Petitioner also argues that the Commission’s reduction of the arbitrator’s award for' serious and permanent disfigurement is not supported by the evidence. We note first that the Commission is not bound by any finding of the arbitrator. (Berry v. Industrial Com. (1984), 99 Ill. 2d 401, 459 N.E.2d 963.) The standard of reviewing the Commission’s findings is simply whether they are contrary to the manifest weight of the evidence, regardless of any variation from the arbitrator’s decision. The Commission based its finding of serious and permanent disfigurement to petitioner’s left arm to the extent of four weeks upon its observation that his arm had numerous minor small light spots. It also observed the smooth white scar on each leg where skin grafts had been taken and found that petitioner sustained serious and permanent disfigurement to the extent of five weeks. We cannot say that these findings are against the manifest weight of the evidence.

Although petitioner also contends that he is entitled to additional compensation under sections 19(k) and 19(1) of the Act for respondent’s failure to make payments after the arbitration hearing, those provisions require the party to request such compensation from the Commission. (A. O. Smith Corp. v. Industrial Com. (1976), 65 Ill. 2d 224, 357 N.E.2d 539.) Petitioner failed to make that request before the Commission and has waived the issue.

For the reasons stated, the judgment of the circuit court of Macon County confirming the decision of the Industrial Commission is affirmed.

Judgment affirmed.

SEIDENFELD, P.J., MILLS, BARRY and KASSERMAN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE REINHARD

license: Public Domain

text:
    MOUNT PROSPECT STATE BANK, Trustee, Plaintiff-Appellant, v. THE VILLAGE OF KIRKLAND, Defendant-Appellee.
    Second District
    No. 2—83—0779
    Opinion filed August 17, 1984.
    Charles L. Fierz, of Sycamore, for appellant.
    William D. Moore, Jr., and Gary L. Ecklund, both of Schlueter, Ecklund, Olson, Barrett & Moore, and Richard K. Van Evera, of Barrick, Jackson, Switzer, Long & Balsley, both of Rockford, for appellee.
   JUSTICE REINHARD

delivered the opinion of the court:

Plaintiff, Mount Prospect State Bank, as trustee under a land trust, appeals from an order of the trial court granting the motion to dismiss of defendant, the village of Kirkland. Plaintiff raises the following issues on appeal: (1) whether it was a denial of equal protection to deny plaintiff refuse collection service where the service was provided to other village residents and paid from general tax revenues; (2) whether monies paid by plaintiff to provide its own service or tax monies retained by the government without providing the service are recoverable as compensatory damages; and (3) whether punitive damages are recoverable for defendant’s exclusion of plaintiff from refuse collection.

The facts alleged in plaintiff’s complaint will be taken as true for purposes of the motion to dismiss. (Soules v. General Motors Corp. (1980), 79 Ill. 2d 282, 284, 402 N.E.2d 599.) Plaintiff owns a parcel of property in the village of Kirkland known as Congress Lake Estates, which contains 70 to 77 mobile homes. This is the only mobile home park in the village and only plaintiff, not the individual mobile homeowners, is a party to this suit. Defendant, pursuant to a contract, commencing May 1, 1982, and terminating April 30, 1985, with Saturn Disposal Systems, Inc. (Saturn), provides refuse collection service to residences within the village. Defendant pays for these services with general village tax receipts. The contract provides, in pertinent part, that Saturn “shall make one weekly unlimited pick-up of garbage *** from each residence in the VILLAGE.” The contract defines “residence” as including “each occupied single family dwelling and each occupied unit or apartment situated in a multiple family apartment building or separate apartments in single family dwellings converted to multiple family use.” “Residence” expressly does not include “mobile homes located in Congress Lake Estates.” The contract specifies that there are 317 residences in the village as of the date of the contract.

In its three-count amended complaint plaintiff sought an order of mandamus directing defendant to provide plaintiff with the “same refuse collection that it affords other taxpaying residential property owners,” compensatory damages for denying plaintiff this service for 19 years, and punitive damages under “Title 42, Section 1983, U.S. Code.” Essentially, this complaint alleged that plaintiff was the owner of real estate containing “70-77 residential homes”; that defendant supplies refuse service in the village which it pays for from general village tax receipts; that the contract for refuse service indicates a “residence” for which this service is provided does not include mobile homes located in “Congress Lake Estates”; that such a contract violates plaintiff’s right to equal protection, as it arbitrarily classifies types of property and excludes plaintiff from a governmental service provided to others in the village; and that plaintiff has been discriminated against for 19 years, during which time it paid for its own refuse collection.

In its order granting defendant’s motion to dismiss, the trial court noted that the parties had agreed that plaintiff’s facility was the only mobile home park in the village. The court concluded that while naming and excluding the mobile home park specifically in the contract might raise an equal-protection argument, the agreed fact was that this was the only mobile home park in the village and plaintiff was not being discriminated against with respect to any other such mobile home parks in the village.- The court further found, inter alia, that it did not violate equal protection to exclude plaintiff’s property from refuse collection services.

Plaintiff argues on appeal that it has been unconstitutionally denied equal protection of the laws because the defendant’s refuse collection policy arbitrarily discriminates against mobile home parks. It maintains that the exclusion of its mobile home park from refuse collection unfairly classifies it with “second class status.” Plaintiff claims no rational basis exists for treating it differently than other residential taxpayers and that this different treatment, which requires it to pay for refuse collection service through its payment of general property taxes without receiving the collection service provided to other village residents, is therefore a denial of equal protection. Plaintiff argues it is entitled to mandamus ordering the village to provide plaintiff with this service.

A government may “differentiate between persons similarly situated as long as the classification bears a reasonable relationship to a legitimate legislative purpose.” (Kujawinski v. Kujawinski (1978), 71 Ill. 2d 563, 578, 376 N.E.2d 1382.) The parties generally agree that the legislative classification here is created by the contract between defendant and Saturn and that the validity of this classification is governed by the law controlling classifications created by statute or ordinance. There is a presumption of validity of these legislative classifications, and the burden is on the party challenging the classification to establish its invalidity. (Illinois Housing Development Authority v. Van Meter (1980), 82 Ill. 2d 116, 122, 412 N.E.2d 151; Hoskins v. Walker (1974), 57 Ill. 2d 503, 508, 315 N.E.2d 25; Szczurek v. City of Park Ridge (1981), 97 Ill. App. 3d 649, 657, 422 N.E.2d 907.) Where no fundamental right or suspect class is involved, the classification “need have only a rational relationship to a legitimate State purpose to be upheld.” People v. Gurell (1983), 98 Ill. 2d 194, 204, 456 N.E.2d 18; Harrington v. City of Chicago (1983), 116 Ill. App. 3d 137, 139, 452 N.E.2d 26.

No fundamental right to garbage collection exists (Goldstein v. City of Chicago (7th Cir. 1974), 504 F. 2d 989, 991), and mobile home park owners are not among the “suspect” classes recognized by the courts. (Illinois Housing Development Authority v. Van Meter (1980), 82 Ill. 2d 116, 119-20, 412 N.E.2d 151; San Antonio Independent School District v. Rodriguez (1973), 411 U.S. 1, 61, 36 L. Ed. 2d 16, 59, 93 S. Ct. 1278, 1311 (Stewart, J., concurring).) Thus, the classification challenged here will be upheld if it bears a rational relationship to a legitimate governmental purpose. (People v. Gurell (1983), 98 Ill. 2d 194, 204, 456 N.E.2d 18.) If the court can discern any reasonable basis for the classification, it will be upheld. (Harrington v. City of Chicago (1983), 116 Ill. App. 3d 137, 139, 452 N.E.2d 26.) This test for constitutional validity is often referred to as the “rational basis” test.

It has been held that under the rational basis test, the court may, on its own initiative, and independent of the parties, articulate facts necessary to justify the classification. (Szczurek v. City of Park Ridge (1981), 97 Ill. App. 3d 649, 657, 422 N.E.2d 907; see Friedman & Rochester, Ltd. v. Walsh (1977), 67 Ill. 2d 413, 367 N.E.2d 1325.) The question whether a rational basis for the classification exists has been considered to be a question of law. (Szczurek v. City of Park Ridge (1981), 97 Ill. App. 3d 649, 657, 422 N.E.2d 907.) Thus, it is appropriate, on a motion to dismiss, for a court on its own initiative to consider whether a rational basis exists for the classification, which would overcome an equal protection challenge. (Szczurek v. City of Park Ridge (1981), 97 Ill. App. 3d 649, 657, 422 N.E.2d 907; Austin View Civic Association v. City of Palos Heights (1980), 85 Ill. App. 3d 89, 102, 405 N.E.2d 1256.) After considering the arguments of plaintiff and defendant and considering the record before us, we conclude that a rational basis for the classification exists here and that the trial court, therefore, properly granted defendant’s motion to dismiss.

It has been held that a distinction between multiple-family structures and single-family residences may be made with a municipality providing garbage service to single-family residences while excluding multiple-family structures. (Szczurek v. City of Park Ridge (1981), 97 Ill. App. 3d 649, 659, 422 N.E.2d 907.) The reasons given in Szczurek included the “more demanding needs” of multiple-family structures and “the greater amount of refuse generated by them.” (97 Ill. App. 3d 649, 656, 659, 422 N.E.2d 907.) Similar reasons can be conceived here. Plaintiff’s property contains between 70 and 77 mobile homes. With such a large number of mobile homes existing on plaintiff’s property, it is reasonable to conclude that the refuse collection needs of this property would vary significantly from the needs of other residents of the village. In fact, as of the date of the contract, there were only 317 residences in the village that would receive refuse pickup service. Including plaintiff’s property with some 70 to 77 mobile homes in the refuse pickup contract would substantially increase the amount of refuse to be picked up, resulting in a significant expense to the village. Also, greater flexibility and frequency of refuse pickup than the village could provide may be necessary to meet the needs of the residents of this mobile home park. (See Szczurek v. City of Park Ridge (1981), 97 Ill. App. 3d 649, 656, 422 N.E.2d 907.) Additionally, a mobile home park may provide greater problems of access for refuse trucks than residences located on city streets.

We further note the contract, by its inclusion of only residences, excludes commercial enterprises within the village from refuse collection service. Plaintiffs property, with its 70 to 77 mobile homes, has more the character of commercial property than it does residential, which we believe is a rational basis for a classification in view of greater refuse generally generated by a commercial enterprise.

Plaintiff’s complaint only generally alleges an arbitrary classification and does not allege facts which would indicate that no rational basis for the distinction between it and residences in the village exist. It does not allege specific facts, for example, that apartment buildings with comparable numbers of units exist in the village and receive refuse collection service, or that other mobile homes similarly situated in the village receive the service. For the foregoing reasons, the presumption of validity of the village’s actions has not been overcome, and a rational basis for the classification has been shown.

Plaintiff’s reliance on Montgomery v. City of Galva (1969), 41 Ill. 2d 562, 244 N.E.2d 193, is misplaced. Montgomery dealt with a garbage service charge assessed against water users, some of whom did not receive garbage collection service. No such service charge is involved in this case.

Because we conceive facts that justify the exclusion of plaintiff’s mobile home park from refuse collection, we hold that plaintiff’s complaint, only generally alleging an equal protection violation, was properly dismissed. Since the other two issues plaintiff raises on appeal are premised on a holding that plaintiff was denied equal protection, they necessarily fail because of our holding that equal protection was not denied.

For the foregoing reasons the order of the circuit court of DeKalb County dismissing plaintiff’s complaint is affirmed.

Affirmed.

UNVERZAGT andLINDBERG, JJ., concur.


author: JUSTICE CAMPBELL

text:
    NATIONAL LOSS CONTROL SERVICE CORPORATION, Plaintiff and Counterdefendant-Appellee, v. NORMAN R. DOTTI, et al., Defendants and Counterplaintiffs-Appellants (Gary N. Crawford et al., Counterdefendants-Appellees).
    First District (1st Division)
    No. 83—0483
    Opinion filed July 9, 1984.
    Rehearing denied August 27, 1984.

      Robert K. Blain, of Altheimer & Gray, of Chicago, for appellants.
    Richard C. Gering, of Arnstein, Gluck, Lehr, Barron & Milligan, of Chicago, for appellees.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Counterplaintiffs, Norman R. Dotti and Ostergaard Associates, appeal from the entry of summary judgment on their counterclaim against counterdefendants, National Loss Control Service Corporation and six former and present employees of that company and its parent, Kemper Company. On appeal, counterplaintiffs (hereinafter referred to as defendants) contend that numerous issues of material fact preclude entry of summary judgment on their four-count countercom-plaint against counterdefendants (hereinafter referred to as plaintiffs) alleging tortious interference with economic advantage, slander, intentional infliction of emotional distress and malicious prosecution.

Defendant Norman R. Dotti was hired by National Loss Control Service Corporation in 1971. National Loss is in the business of consulting to commercial, governmental and industrial entities regarding fire prevention, noise control and other environmental problems. At his suggestion National Loss developed a separate group to handle the industrial noise and vibration control aspects of its work. Dotti was named the group’s first manager in 1974. In December 1978, his title was changed to principal engineering consultant.

In the winter of 1978 Dotti became dissatisfied with his employment at National Loss and decided to work for plaintiff Ostergaard Associates, a small firm in Cadwell, New Jersey, which also did noise and vibration consulting. Dotti tendered his resignation to National Loss on January 30, 1979. He advised National Loss that he would continue to work for them through the end of February 1979. On the afternoon of February 15 he was contacted by a member of the personnel department, who asked him to come in for an exit interview. When Dotti arrived for the interview he was escorted to a large conference room. There he was confronted by Kemper’s chief of security, Vincent R. Inserra, an attorney for Kemper, Wayne Koprowsky, and two vice-presidents of National Loss, Gary N. Crawford and Daniel Benevich. They interrogated Dotti extensively concerning his activities over the past weeks. They accused Dotti of stealing certain computer tapes. Dotti denied their accusations, yet they persisted in questioning him and asked if Dotti would allow someone to go home with him to search his house. The meeting lasted two hours. At its conclusion they informed Dotti that his employment was terminated effective the next day. Dotti was escorted to his car and driven home. The next day he was allowed to remove his personal belongings from his desk under the supervision of Crawford.

On June 29, 1979, Dotti and Ostergaard were served with a complaint and a motion for preliminary injunction in this cause. National Loss sought to enjoin defendants from using computer tapes, reports of testing and teaching materials which they alleged Dotti had taken from National Loss prior to his departure.

Hearings on the motion for a preliminary injunction were held on 15 days between September 1979 and August 1980. In November 1979, Dotti and Ostergaard filed their counterclaim. The counterclaim alleged tortious interference with prospective economic advantage, slander and intentional infliction of emotional distress. On August 27, 1980, at the close of National Loss’ case, the court denied their motion for a preliminary injunction. The trial of National Loss’ complaint commenced on October 13, 1981. National Loss rested on the evidence presented during the preliminary injunction hearing. Dotti and Ostergaard presented their defense, and National Loss presented testimony in rebuttal. On February 4, 1982, the trial court entered judgment in favor of Dotti and Ostergaard on the complaint.

The trial court found that through courses he took and his own efforts Dotti had become an expert in the area of industrial noise and vibration during the course of his employ at National Loss. Dotti played a role in convincing National Loss to acquire additional computer hardware and to purchase data from outside noise researchers to better serve their clients. The court found that on the morning of February 15, 1979, Dotti was using the National Loss computer to test the speed and storage capacity of a Tektran intelligence and storage and retrieval device. Crawford thought that Dotti was using the device to transfer confidential material stored in the National Loss computer to his own tapes for use at his next job. The court held, however, that Dotti has unequivocally denied all charges of computer thievery and no further significant proof thereof was presented. The court also found that teaching notes and instructional visual aid materials which Dotti had collected over the years, kept in his own home and used for lectures he gave, contained merely information of general knowledge within the industry. The court held that National Loss had failed to prove a conspiracy between Dotti and Ostergaard or that Dotti had stolen anything from National Loss.

On March 16, 1982, defendants amended their counterclaim to include a count charging malicious prosecution. On June 24, 1982, plaintiffs filed a motion for summary judgment. The motion was fully briefed by the parties. On February 3, 1983, the court entered summary judgment against defendants on their claim of malicious prosecution. On February 16, 1983, the court entered summary judgment against defendants on the remaining counts of their counterclaim. Defendants appeal.

Initially, defendants contend that the trial court misapplied the standard for determining if a movant is entitled to summary judgment. This error is evident, they argue, from a portion of the trial court’s opinion which reads,

“It must be remembered that a party is not required to prove his case at the summary judgment state; he must merely present a factual basis which arguably would entitle him to judgment in his favor. [Citation.] Counterdefendant has more than adequately met his burden in this respect.”

They argue that this shows the court’s confusion as to which party bears the very light burden sufficient to resist a motion for summary judgment. Plaintiffs argue that the challenged language could also reflect the court’s finding that plaintiffs had met their burden in demonstrating that defendants had failed to show the factual basis necessary to withstand a motion for summary judgment. We agree. The quoted language is too ambiguous in and of itself to indicate that the trial court misapplied the standards for summary judgment.

Plaintiffs also point out that Dotti and Ostergaard did not file any affidavits to support the allegations of their counterclaim nor have they argued that they were unable to obtain any necessary affidavits. Their argument before the trial court and this court relies instead upon evidence adduced at the trial on National Loss’ complaint.

A trial court may enter summary judgment only when, after examining all the pleadings, depositions and affidavits, it concludes that no genuine issue of material fact exists between the parties and summary judgment may be entered as a matter of law. (Marciniak v. O’Connor (1981), 102 Ill. App. 3d 381, 430 N.E.2d 536; Ill. Rev. Stat. 1979, ch. 110, par. 57.) All inferences to be drawn from the evidence must be made in a light most favorable to the nonmoving party. (Rubin v. City National Bank & Trust Co. (1980), 81 Ill. App. 3d 1020, 402 N.E.2d 281.) While the nonmoving party is not required to prove his case at this preliminary stage, he is required to present some factual basis which would arguably entitle him to a judgment in his favor. (Chisolm v. Stephens (1977), 47 Ill. App. 3d 999, 365 N.E.2d 80.) With these principles in mind we will examine the four counts of defendants’ counterclaim.

Count I of the counterclaim alleged tortious interference with prospective economic advantage arising out of a business relationship. In Thorne v. Elmore (1979), 79 Ill. App. 3d 333, 345, 398 N.E.2d 837, 847, the court outlined the elements of this tort. A plaintiff must prove that (1) the plaintiff had a reasonable expectancy of entering into a business relationship; (2) the defendant knew of the expectancy; (3) the defendant intentionally interfered, thus preventing the realization of the expectancy in the form of a valid business relationship; and (4) the defendant’s interference damaged the plaintiff.

Defendants argue that the tortious interference occurred in destroying the good working relationship between Dotti and John Deere & Co., in preventing the publication of a scientific paper written by Dotti and in dissuading various potential customers of Ostergaard Associates from doing business with Dotti. They assert that while at National Loss, Dotti had an excellent working relationship with officers of Deere and had performed several large projects for them. Defendant Russell Hannula’s deposition and testimony reveal, they contend, that several days after Dotti was fired Hannula met with representatives of Deere, showed them where in Dotti’s resume he had taken credit for work performed for Deere by other National Loss employees, told them of errors Dotti had made in certain projects and made numerous other negative comments about Dotti. Following that meeting, a contract between Deere and Ostergaard was terminated, and there has been no further contact between them. Defendants argue that there is a strong inference that Hannula’s contract with John Deere was made in an effort to harm Dotti and did, in fact, cause harm.

Plaintiffs describe a different factual situation. First, they point out that the evidence shows that the above-mentioned contract between Deere and Ostergaard was awarded after the meeting of Han-nula and the Deere representatives, and that the contract was terminated several months later because Deere had “changed their priorities.” Plaintiffs argue that the meeting was held to discuss ongoing projects National Loss was performing for Deere and the arrangements for the meeting had been made by Dotti before he left National Loss. Plaintiffs assert that Dotti admitted that he went to Deere a few days after he was fired in an attempt to induce Deere to transfer remaining work on the projects to Ostergaard. Plaintiffs claim that Hannula justifiably intended to advance National Loss’ business interests by allaying any concern that Dotti’s departure might diminish National Loss’ capabilities to provide noise control services and to defend against Dotti’s own assault. (See Candalaus Chicago, Inc. v. Evans Mill Supply Co. (1977), 51 Ill. App. 3d 38, 366 N.E.2d 319.) They assert that an issue of intent may be disposed of by summary judgment (Gordon v. Oak Park School District No. 97 (1974), 24 Ill. App. 3d 131, 320 N.E.2d 389), and that defendants have not presented any evidence that Hannula’s discussions with Deere were motivated solely by an intent to harm them.

With respect to the publication of Dotti’s scientific paper, Dotti contends that while he was employed at National Loss he was authorized by his supervisor, plaintiff Crawford, to write a paper on a noise testing device. The paper was essentially finished before Dotti left National Loss and was presented at a convention of the American Foundrymen’s Society in the spring of 1979. The paper was well received and was scheduled to be published in the society’s journal when, at the request of Crawford, the society decided not to publish it. Crawford testified that he asked the society not to publish the paper and threatened to make them part of the instant lawsuit if they did because the paper contained information about National Loss clients which was held confidential by written contracts with those clients. Plaintiffs contend that their action in contacting the society was necessary to protect National Loss’ business interests. Dotti admitted that data charts in the paper did contain confidential information but contends that the client affected has not complained about the inclusion of the data.

Defendants also contend that plaintiffs discussed Dotti with other potential clients of Ostergaard. Plaintiffs contend that testimony in the record relating to these discussions indicates that these discussions were for valid business reasons and the only mention of Dotti related to the fact that he had left the company.

Upon review of the arguments of counsel we cannot conclude that the right of plaintiffs to summary judgment on the issue of tortious interference with prospective economic advantage is free from doubt. (Johnson v. North Bank (1981), 99 Ill. App. 3d 320, 426 N.E.2d 4.) Dotti and Ostergaard are not required to prove their case at this stage. We find, however, that they have presented some factual basis which would arguably entitle them to judgment in their favor (Chi-solm v. Stephens (1977), 47 Ill. App. 3d 131, 320 N.E.2d 389). Therefore, it was error to grant summary judgment on this count.

Dotti next contends that the trial court erred in entering summary judgment on count II of the counterclaim which alleged slander. The slanderous statements involve comments made by Hannula to Deere concerning errors in the accomplishments claimed by Dotti on his resume and also errors in work Dotti performed for Deere. Dotti also claimed that plaintiff and nonplaintiff employees of National Loss slanderously stated that Dotti had taken computer tapes and engineering files from National Loss.

Plaintiffs argue that Dotti has no cause of action for the alleged slanderous statements because the statements fall into the following categories: statements whose truth has been admitted by Dotti; statements which reflect merely a difference of professional opinion between Dotti and the speaker; statements which are nonactionable under a qualified privilege; statements which even if false are not reasonably susceptible to a defamatory meaning; and statements which were not alleged in the second amended counterclaim, and, therefore, are not properly before this court.

We have reviewed the arguments of counsel and the record citations offered in support of these arguments. We find that the briefs and record are replete with factual disputes concerning what statements were made, the truth of those statements and whether the statements are privileged or otherwise nonactionable. In view of these issues of material fact, it cannot be concluded that plaintiffs are entitled to judgment as a matter of law. Accordingly, the trial court erred in entering summary judgment on this count.

Defendants next contend that the trial court erred in granting summary judgment on their action for intentional infliction of emotional distress. Defendants allege that Dotti suffered severe emotional distress as a result of the two-hour interview in which Dotti was accused of stealing computer tapes, plaintiffs’ activities in slandering his reputation and plaintiffs’ actions in preventing the publication of his scientific paper. Defendants also allege that Dotti suffered as a result of the protracted course of plaintiffs’ case against him which lasted four years before the trial court entered judgment in defendants’ favor. As a result of plaintiffs’ actions Dotti claimed that he has suffered nervousness, sleeplessness, fear of losing his job, cramps in his arms and legs, loss of appetite and periods of depression. Defendants argue that a jury rather than a judge should listen to Dotti’s testimony and decide whether he suffered severe emotional distress.

Plaintiffs contend that Dotti’s deposition and testimony reveal that the conduct of plaintiffs at the meeting does not rise to the level of extreme and outrageous conduct necessary to sustain an action for intentional infliction of emotional distress. They point out that it is undisputed that on February 15, 1979, Dotti was copying files and computer programs from National Loss’ computer. Plaintiffs also argue that it is doubtful that under Illinois law a defendant may rely upon the wrongful filing of a civil action as a basis for an emotional distress claim (see Lyddon v. Shaw (1978), 56 Ill. App. 3d 815, 372 N.E.2d 685; Pantone v. Demos (1978), 59 Ill. App. 3d 328, 375 N.E.2d 480). Further, plaintiffs contend that the symptoms of emotional distress claimed by Dotti are inadequate grounds for recovery.

We are not persuaded that plaintiffs’ conduct was so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency. (Public Finance Corp. v. Davis (1976), 66 Ill. 2d 85, 89-90, 360 N.E.2d 765, 767.) The trial court was correct in determining that plaintiffs were entitled to summary judgment on this count.

Lastly, defendants contend that the trial court erred in granting summary judgment on the claim of malicious prosecution. Plaintiffs argue that defendants have failed to present any evidence that National Loss’ suit was instituted maliciously and without probable cause. Such a showing is required for an action of malicious prosecution. (Stopka v. Lesser (1980), 82 Ill. App. 3d 323, 402 N.E.2d 781.) The trial court in granting summary judgment on this count stated: “It is clear to the court that the original action, even though unsuccessful from the [plaintiffs’] point of view, was well-grounded and certainly not undertaken in the evil spirit required in an action for malicious prosecution.” Defendants have failed to present any evidence to the contrary. Although defendants succeeded in the original action, that fact is not sufficient to show that the original proceeding was undertaken without probable cause. The comments of the trial court, who heard all the testimony on the original case, are highly persuasive and are amply supported by the record. The trial court was correct in entering summary judgment on this count.

For the foregoing reasons, the judgment of the circuit court is affirmed in part and reversed in part and remanded for further proceedings consistent with this order.

Affirmed in part, reversed in part, and remanded.

BUCKLEY, P.J., and McGLOON, J., concur.


author: PRESIDING JUSTICE SEIDENFELD

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. DEBORAH A. EVANS, Defendant-Appellee.
    Second District
    No. 2—83—0677
    Opinion filed August 13, 1984.

      J. Michael Fitzsimmons, State’s Attorney, of Wheaton (Barbara A. Pre-iner and Diane Fischer-Woods, Assistant State’s Attorneys, of counsel), for the People.

      George J. Bakalis, of Civinelli, Bakalis & Culliton, of Bloomingdale, for appellee.
   PRESIDING JUSTICE SEIDENFELD

delivered the opinion of the court:

In response to a requisition warrant from James J. Blanchard, Governor of Michigan, James R. Thompson, Governor of Illinois, issued a rendition warrant for the return of defendant, Deborah Ann Evans, to Michigan. Evans had been charged in Michigan, by four complaints, with the unlawful delivery of a controlled substance, psilocybin. She was charged in Illinois and arrested for having been a fugitive from justice, and petitioned for habeas corpus relief, challenging the regularity of the rendition warrant and supporting documents. The trial court granted Evans’ petition, and the State appeals.

The issues presented are whether the Michigan complaints against Evans are defective for failure to clearly indicate that they were made before a magistrate and whether the affidavits were sufficiently authenticated to justify issuance of the rendition warrant.

Consistent with the purpose of extradition to summarily return a fugitive to the place of the alleged offense (People v. Cheek (1982), 93 Ill. 2d 82, 90), courts generally will not interfere with the Governor’s grant of extradition unless the order is so palpably erroneous as to warrant an inference of fraud or inadvertence. (People ex rel. Dimas v. Shimp (1980), 83 Ill. App. 3d 150, 157.) However, as the asylum State has a substantial interest in protecting people from unjustifiable extradition (People v. Cheek (1982), 93 Ill. 2d 82, 90), habeas corpus proceedings may be initiated to test the validity of extradition. (People ex rel. Hackler v. Lohman (1959), 17 Ill. 2d 78, 84, cert. denied (1960), 361 U.S. 963, 4 L. Ed. 2d 544, 80 S. Ct. 591.) In such cases, the court may consider only the questions of (1) whether the accused is the person named in the warrant; (2) whether the accused is substantially charged with a crime in the demanding State; (3) whether the accused is a fugitive from the justice of the demanding State; and (4) whether the papers are regular in form. People ex rel. Dimas v. Shimp (1980), 83 Ill. App. 3d 150, 156-57.

Evans has challenged only the regularity of the extradition papers. By doing so, she raises the issue of whether Governor Thompson was justified in recognizing the demand made upon him by the Governor of Michigan. (People ex rel. Agee v. Elrod (1981), 93 Ill. App. 3d 1038, 1042.) In order to be entitled to recognition, a demand for extradition must, inter alia, be accompanied by a copy of the indictment or information, or an affidavit made before, a magistrate, which substantially charges the accused with having committed a crime under the law of the demanding State and which is authenticated by the executive authority making the demand. (Ill. Rev. Stat. 1983, ch. 60, par. 20.) Where, as here, the Governor of the asylum State issues a rendition warrant which is regular on its face, a prima facie case is made out that the issuance of the warrant was legal and justified. (People v. Cheek (1982), 93 Ill. 2d 82, 90; People ex rel. Hernandez v. Elrod (1981), 86 Ill. 2d 453, 457.) However, presentation of the warrant does not end the proceeding, and the efficacy of the warrant may be limited or destroyed if the necessary procedural requirements were not complied with. People ex rel. Ritholz v. Sain (1962), 24 Ill. 2d 168, 172.

The rendition warrant here refers only to a Michigan complaint and warrant, without indicating whether there was an affidavit made before a magistrate. However, in analyzing the basis for the issuance of the rendition warrant, all papers which were before the Governor of the demanding State may be considered. (People ex rel. Hackler v. Lohman (1959), 17 Ill. 2d 78, 88-89, cert. denied (1960), 361 U.S. 963, 4 L. Ed. 2d 544, 80 S. Ct. 591.) These documents include copies of four complaints subscribed and sworn to before an individual designated as a “District Judge/Deputy clerk/Magistrate.” While the sworn complaints can be considered affidavits (see People ex rel. Dimas v. Shimp (1980), 83 Ill. App. 3d 150, 155), when viewed in isolation, they do not clearly indicate that the person before whom the complaints were made was a magistrate. (See People ex rel. Gilarmini v. Elrod (1978), 59 Ill. App. 3d 258, 260.) This court cannot presume that the affidavits were made before a magistrate; rather, the State must establish this fact. (People ex rel. Rukavina v. Sain (1961), 22 Ill. 2d 546, 549.) The requirement that the affidavit be made before a magistrate is designed to guarantee that a judicial officer has determined that probable cause existed for the issuance of the arrest warrant against the accused. (People ex rel. Coats v. Sain (1962), 24 Ill. 2d 248, 252.) The signature of a deputy clerk is insufficient. (People ex rel. Coats v. Sain (1962), 24 Ill. 2d 248, 252-53.) Therefore, the complaints, if viewed alone, would not meet the requirement of an affidavit made before a magistrate.

The arrest warrants accompanying the complaints, however, are signed by a person who is designated as “District Judge/Magistrate.” There is authority that the signatures on the warrants may be considered in determining the sufficiency of the signature on the complaints. (See Dawson v. Beasley (1962), 242 Ind. 536, 543, 180 N.E.2d 367, 370.) These signatures clearly appear to have been made by the same person who signed the complaints, and clearly designate that that person is a district judge or magistrate. Consequently, the complaints are shown to have been made before a magistrate so as to comply with the statutory requirements.

However, the affidavit, or other charging instrument, also must be authenticated by the executive authority making the demand. (Ill. Rev. Stat. 1983, ch. 60, par. 20.) The term “Executive Authority” refers to the Governor or person performing the functions of Governor in a State or territory. (Ill. Rev. Stat. 1983, ch. 60, par. 18.) The sole document in the record which is signed by the Governor of Michigan is, essentially, an appointment of an agent to receive custody of Evans. This document contains nothing which could be construed as an authentication of any of the accompanying papers. The prosecutor presented the trial court with all of the papers which were before Governor Thompson when he issued the rendition warrant. None of these documents contain an authentication of the complaints and warrants by the Governor of Michigan.

There is a document executed by the Michigan Secretary of State which indicates that the application for a requisition warrant and the accompanying papers were true and correct copies of the entire record on file with the Secretary of State in this case. In addition, each complaint and warrant is accompanied by a certification by the clerk of the court that the copies of the complaints and warrants are true and correct copies of the original charges, and a certification by a judge of the Michigan district court that the clerk’s signature is proper and authentic. However, the requirement of authentication by the executive authority making the demand is not met by certifications of authenticity from the Secretary of State, district judge, or clerk of the court. (Ex parte Anderson (1938), 135 Tex. Crim. 291, 293, 120 S.W.2d 259, 260; People ex rel. Merklen v. Enright (1926), 217 App. Div. 514, 520, 217 N.Y.S. 288, 294.) Although the Secretary of State noted that all accompanying papers were incorporated in the Michigan Governor’s requisition, the document executed by the Michigan Governor did not incorporate any other documents and did not refer to the certification by the Secretary of State. Given the lack of proper authentication by the Governor of Michigan, the trial court correctly granted habeas corpus relief to Evans. See Locke v. Burns (W.Va. 1977), 238 S.E.2d 536, 539; People ex rel. Merklen v. Enright (1926), 217 App. Div. 514, 520, 217 N.Y.S. 288, 294.

Therefore, the judgment of the circuit court of Du Page County is affirmed.

Affirmed.

NASH and HOPE, JJ., concur.


author: JUSTICE GREEN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TERRY WOITH, Defendant-Appellant.
    Fourth District
    No. 4—83—0845
    Opinion filed August 10, 1984.

      David E. Robinson, of Jacksonville, for appellant.
    Tim P. Olson, State’s Attorney, of Jacksonville (Robert J. Biderman and David E. Mannchen, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE GREEN

delivered the opinion of the court:

Following a jury trial in the circuit court of Morgan County, defendant, Terry Woith, was convicted of the offense of indecent liberties with a child (Ill. Rev. Stat. 1983, ch. 38, par. 11 — 4(a)(3)). Defendant was subsequently sentenced to a term of four .years’ probation, fined $5,000, and ordered to serve a term of one year home confinement.

The principal issue presented for review is whether the introduction at trial of certain hearsay statements made by the victim to her cousin, her mother, and a law enforcement officer constituted plain error (87 Ill. 2d R. 615(a)). Although only the statement to the cousin was properly admissible, we conclude that the doctrine of plain error should not be invoked because of the strength of the evidence in this case and because defendant was not deprived of a fair trial. Defendant also maintains on appeal that (1) his guilt was not proved beyond a reasonable doubt, (2) the trial court abused its discretion in refusing to allow him to introduce certain evidence as to the victim’s credibility, (3) the trial judge’s conduct in ruling upon the presentation of certain evidence deprived him of a fair trial, and (4) he was denied the right to effective assistance of counsel. We affirm.

Much of the evidence concerning the background of the alleged offense was undisputed. Defendant was a 35-year-old male dentist with offices in Jacksonville and Meredosia. On the morning of August 17, 1983, he examined the 14-year-old victim and her brother in his Mere-dosia office. Upon completion of the short examinations, he complimented the victim on her eyes and her hair. Defendant testified that he complimented her because she appeared nervous and he thought this would comfort her. He indicated that he would need to speak to their mother about further dental work and asked for and obtained directions to their home. According to the victim, she told defendant her mother would not be home until after 4 p.m. that afternoon. The defendant stated he did not know that the mother would not be home before 4 p.m.

At about 1 p.m. that day, defendant drove to the victim’s trailer residence in his van and went to the door. Some children had apparently damaged the wood sign at defendant’s office. He testified that he was looking for wood stain on his lunch hour and also went to the victim’s house to talk to the children’s mother about dental work they needed. The victim met him at the door. Upon learning the mother was not at home, he asked her if she knew where he could get some wood stain. He testified that he asked her if she knew anything about who had been damaging his sign. After a short conversation they both went into his van. She testified he asked her if she would like to see his van. He testified she asked to see the van. The weather was very warm and while in the van, he mentioned something to her about “skinny dipping.” He testified that he said it was a good day to do some “skinny dipping.” She testified he asked her if she had ever done so.

The defendant and the victim then went into her trailer residence, which was air conditioned. The testimony varied greatly as to what happened in the trailer, but they agreed that they talked about various things including “rock” concerts. He admitted that at one time he put his hand on her shoulder and told her to relax. He maintained that he did this because he felt she was nervous about her dental work and told her that relaxing would help her overcome her fears. He asserted that she was relaxed when he left and that he did not touch her breasts nor touch her in any other inappropriate manner.

The victim testified that when defendant put his hand on her back he started rubbing her back up and down and told her it was too bad she was not a little older because they could “go out.” She further testified that they conversed about “rock” concerts for a while and then he started to leave. According to the victim, as she followed him to the door, he “turned around quickly and grabbed [her] on the side of [her] breasts.” She said that he obtained a firm grip on her breasts and moved his hands in a circular motion. She further testified that he told her that her hair “smelled nice” and asked if she was nervous about going to his office. She stated that she answered that she was and he told her that if she would shut her eyes and think about a pleasant place it would relax her. During this time, he continued to massage her breasts. She testified that when he relaxed his grip, she walked away. She said that he then told her that he hoped that she would be a good patient and a good friend and then left.

The victim’s 16-year-old cousin testified that during the afternoon of August 17, 1983, the victim came to her house “shaking real bad like she was scared to death” and stated that defendant had put his hands on her breasts. The victim’s mother testified as follows. She worked at Passavant Hospital in Jacksonville and got home at approximately 4 p.m. on August 17. She testified that the victim told her that defendant (1) came to their trailer looking for wood stain, (2) showed her the inside of his van, (3) came into her house and had his hands on her back, (4) touched her breasts, and (5) commented that it was too bad that the victim was not a little older. Sergeant Jerry Lieb of the Morgan County Sheriff’s department testified that he interviewed the victim the day after the episode. He testified that the victim described to him a version of the events of the previous day which was substantially the same as that to which she had testified at trial. The major thrust of defendant’s position on appeal is that the admission of these statements constituted plain error.

The State’s case was supported by the testimony of defendant’s secretary-receptionist and his dental assistant. During the noon hour of August 17, 1983, they had observed that defendant’s van was parked by the victim’s trailer. The secretary-receptionist testified that the defendant came back to the office late for his 1:30 p.m. appointment and stated that he had been looking for wood stain, whereupon she said to him, “Some of us weren’t born yesterday.” According to the two witnesses, defendant did not respond and said nothing about being at the victim’s residence until later, after they had told him they knew where he was. The defense was supported by the testimony of a dentist of 30 years’ experience who stated that he had examined the victim and her brother’s dental records and, in his opinion, the records did show that the children needed dental treatment.

The State’s case was very strong and fully sufficient to justify the jury’s determination that defendant’s guilt was proved beyond a reasonable doubt. (Jackson v. Virginia (1979), 443 U.S. 307, 61 L. Ed. 2d 560, 99 S. Ct. 2781.) The victim’s testimony was reasonably clear, considering the embarrassment that relating the events was likely to cause. Her version of the events remained reasonably consistent. The defendant’s contention that she fabricated her testimony so that her mother would not chastise her for being “precocious” was weak. If she had wished to avoid her mother’s condemnation, she would likely have said nothing about the defendant’s coming to the trailer. By relating the story she risked condemnation for permitting the defendant to enter the trailer. However, the greatest strength of the State’s case was the lack of credibility of the defendant’s explanation of the occurrence.

The jury could well have believed the victim’s testimony that she told defendant at the office that her mother would not be home until late in the afternoon. If defendant knew that, he most certainly did not go to the trailer to further explain the nature of the children’s dental problems to their mother. However, even if he thought the mother might be home, his conduct was most unusual. In the course of his professional duties, a 35-year-old male dentist would be most unlikely (1) to go alone into a trailer with a 14-year-old female patient whose attractiveness he had recently complimented, (2) to discuss with her the subject of swimming in the nude, and (3) to then engage in some sort of procedure to relax her which involved his placing his hand on her back. The circumstances strongly indicated that he went to her trailer with an intent to make advances to her. The inference that he did, in fact, make the advances toward her to which she testified is corroborated by the testimony of one of defendant’s staff that he was evasive in explaining his whereabouts during the early afternoon.

We now turn to the problems created by the introduction into evidence of the statements by the victim to her cousin, her mother, and Sergeant Lieb. As objection was made at trial only to the relevancy concerning the statement to Sergeant Lieb and error was not claimed in a post-trial motion as to any of the evidence, any error in admission of the evidence was waived unless plain error resulted. People v. Pickett (1973), 54 Ill. 2d 280, 296 N.E.2d 856.

If offered to prove the truth of the matters asserted, all of the statements were hearsay. They could not come -within the prompt-complaint exception to the hearsay rule because that exception is applicable only to rape cases (People v. Buckley (1976), 43 Ill. App. 3d 53, 356 N.E.2d 1113), prosecutions under section 11 — 4(a)(1) of the Criminal Code of 1961 (Ill. Rev. Stat. 1983, ch. 38, par. 11 — 4(aXl); People v. Darby (1978), 58 Ill. App. 3d 294, 374 N.E.2d 229), and to sex offenses where, unlike here, the victim is under 12 years of age. (See Ill. Rev. Stat. 1983, ch. 38, par. 115 — 10.) Another possible exception to the hearsay rule would be the excited-utterance exception. That exception requires (1) an occurrence sufficiently startling to produce a spontaneous and unreflected statement; (2) absence of time to fabricate; and (3) a statement which relates to the circumstances of the occurrence. (People v. Robinson (1978), 73 Ill. 2d 192, 383 N.E.2d 164; People v. Pariste (1972), 5 Ill. App. 3d 1009, 287 N.E.2d 310; E. Cleary & M. Graham, Handbook of Illinois Evidence sec. 803.3, at 427 (3d ed. 1979).) Here, the occurrence was sufficiently startling to produce a spontaneous and unreflected statement and the statements related to the circumstances of the occurrence. The problem was the length of time between the event and the statements.

The State admits that the statement to Sergeant Lieb was too remote in time from the event to qualify. The victim’s statement to her mother was also too remote. It was not made until several hours after the incident and made while the victim, her mother, and her brother were eating their evening meal. The victim’s brother had mentioned that defendant had been flirting with the victim during their visit to his office. The victim made the statement in response to what her brother had said. There was no showing that she continued to be excited and she had several hours to fabricate.

The statement allegedly made by the victim to her cousin presents a much closer question. Her cousin testified that the victim was shaking a great deal when the victim came to her house. The exact amount of time that had elapsed since the incident was not made clear. The victim testified that after defendant left the trailer, she sat on the couch trying to calm herself, finished doing some dishes, and then walked over to her cousin’s house. The evidence did not show that she made the statement immediately upon arriving at her cousin’s house.

In People v. Jackson (1956), 9 Ill. 2d 484, 138 N.E.2d 528, a lapse of one hour between a stabbing and an utterance was held to require exclusion. The declarant there was severely wounded. A situation somewhat like that here occurred in People v. Stewart (1970), 130 Ill. App. 2d 623, 264 N.E.2d 557. After an incident wherein she claimed to have been kidnapped, a victim returned to a laundromat, gathered clothes she had left there, drove to her home, washed, and checked her children before relating the details to an aunt. The Stewart court determined that the statement was not an excited utterance and the conviction was reversed. In People v. Walton (1976), 43 Ill. App. 3d 74, 356 N.E.2d 1131, the court determined that a statement made by complainant in a rape case to a doctor in a hospital 1 xk hours after the alleged incident did not constitute an excited utterance. In neither Jackson, Stewart, nor Walton did the opinion indicate that the victim was still excited at the time of the utterance.

Despite the cousin’s testimony indicating that the victim was highly excited and nervous when the victim related the incident to her, we conclude that the lapse of time between the event and the statement was such that the victim had time to fabricate. Had the victim gone directly to her cousin’s house after the event, our ruling might be different.

The other possible grounds for admitting the statements would be as prior statements consistent -with trial testimony. Such testimony is admissible only to rebut an express or implied charge by an opponent that a witness has a motive to testify falsely or the testimony of the witness is a recent fabrication. In order to be admissible to negate a motive to fabricate, the statement must have been made prior to the existence of the motive. (People v. Clark (1972), 52 Ill. 2d 374, 288 N.E.2d 363.) Here, the only inference of motive for the victim to falsify that was raised by the defense was the contention previously stated that the victim fabricated the story so that her mother would not criticize her for being too forward with the defendant. This motive could have arisen at the supper table when the victim’s brother mentioned that the defendant had flirted with the victim. Thus, the victim’s previous statement to her cousin, which was consistent with her testimony at trial, had some probative value in negating that defense contention and was admissible for that purpose.

Regardless of the impropriety of the introduction of the statements of the victim’s mother and Sergeant Lieb, we find no plain error to have occurred. In People v. Robinson (1978), 73 Ill. 2d 192, 383 N.E.2d 164, evidence was introduced, without defense objection, that between 3x/2 and 4x/2 hours after a rape, the victim told her sister, the sister's husband, and a police officer that she had been raped and gave details of the incident. The court held that the statements were not excited utterances because of the time lapse and did not meet the corroborative complaint exception because the testimony had related the victim’s version of the details of the occurrence. However, because the declarant victim had testified and was subject to cross-examination and because everything of significance in the statements was corroborated by the victim’s testimony, no plain error occurred.

Defense counsel on appeal notes that the jury, while deliberating, twice asked for a transcript of Sergeant Lieb’s testimony. One inquiry indicates that the jury was interested in the position in which the victim said she was standing when “the alleged fondling occurred.” No transcript was given to the jury as none was available. Defense counsel argues that this indicates the importance of Sergeant Lieb’s hearsay testimony. However, the jury could have been interested in Sergeant Lieb’s version of the victim’s statement merely to see whether the statement was consistent with her testimony at trial. In any event, the supreme court stated in People v. Carlson (1980), 79 Ill. 2d 564, 576, 404 N.E.2d 233, 239, that the plain error exception is applicable to cases where the evidence is closely balanced or the error is of the magnitude to deny the defendant a fair trial. As we have indicated, we deem the evidence in support of the conviction to be very strong. This strength results from the weakness in defendant’s attempted explanation of the occurrence. Under the precedent of Robinson, we do not find the presentation of the hearsay testimony to have deprived defendant of a fair trial.

The question of whether the court improperly prevented the defense from impeaching the victim’s credibility arose when the defense was cross-examining her about the conversation at the dinner table the evening of the offense. The defense attempted to show that the victim had a motive to maintain that defendant had made advances to her so that her mother would not accuse her of being too forward or precocious. The defense asked the victim if she had trouble communicating with her mother. After the State’s objection, the court permitted the defense to cross-examine the victim out of the presence of the jury. She then testified that her mother was angry with her because she was dating a “rock” singer. The victim admitted that when her brother mentioned that defendant had been flirting with her, she was reluctant to say anything that would reflect badly on her, but that she told the truth to her mother at that time.

The court ruled that the defense could cross-examine the victim “within limits concerning her fear of her mother’s disapproval” and that the defense could argue to the jury that there was reason for her to tell “less than the truth.” However, the trial court stated that the defense could not ask her about prior misbehavior on her part, which she had denied on voir dire, unless the defense was in a position to offer connecting testimony. The court had previously indicated that the defense could not call the victim’s mother, her cousin, or another witness who defense counsel stated might know something about the victim’s prior misbehavior, because the defense had violated a discovery request concerning these witnesses.

We find no error to have occurred. The trial court properly proceeded with caution. It permitted reasonable cross-examination concerning the child’s concern about the mother’s disapproval and indicated that the defense could make proper argument. The defense could not guarantee connecting evidence in regard to any more extensive interrogation. Furthermore, as the court mentioned, the question of who might have been the more aggressive in the victim’s encounter with the defendant was not of great importance. Because of the victim’s age, the conduct alleged would have constituted a crime by defendant regardless of her willingness or consent. The trial court did not breach its discretion in regard to the defense attempt to impeach the victim.

The defendant contends that because the trial court on five occasions sua sponte admonished defendant not to testify in a narrative fashion and did likewise two times with the dentist who testified concerning the children’s dental records, the court exhibited bias against defendant. (See People v. Garines (1924), 314 Ill. 413, 145 N.E. 699.) He notes that, on the other hand, Sergeant Lieb was permitted to give a narrative answer that covered four pages in the transcript. We again find no breach of discretion. The question presented to Sergeant Lieb called for a narrative response. No error resulted.

Defendant’s principal point in support of his contention that he was deprived of his right to effective assistance of counsel arises from the failure of his trial counsel to properly preserve for review any of the error in the admission of the victim’s hearsay statements previously discussed. Representation by counsel is constitutionally deficient if the trial counsel’s incompetence produced substantial prejudice to a defendant without which the result of the trial would probably have been different. (People v. Royse (1983), 99 Ill. 2d 163, 457 N.E.2d 1217.) Because of the strength of the case of the State, we conclude that results of the trial would not likely have been different had the statements been excluded. Furthermore, defense counsel may have been exercising strategy in permitting the statements, particularly that to the victim’s mother, to be introduced. People v. Murphy (1978), 72 Ill. 2d 421, 381 N.E.2d 677.

Defendant complains of trial counsel’s decision not to request the court to submit to the jury the question of whether defendant was merely guilty of the included misdemeanor offense of contributing to the sexual delinquency of a minor. (Ill. Rev. Stat. 1983, eh. 38, par. 11-5.) That decision could likewise have been one of strategy. (People v. Murphy (1978), 72 Ill. 2d 421, 381 N.E.2d 677.) Defendant also complains that counsel took no action when the victim returned sobbing to the witness stand after the previously described voir dire examination. The best procedure to take under circumstances of that nature is clearly a matter of trial strategy. We also find no incompetence in regard to the trial counsel’s presentation of evidence or cross-examination.

The record does not indicate that defendant was deprived of his right to effective assistance of counsel.

We affirm because no reversible error occurred.

Affirmed.

MILLS, P.J., and TRAPE! L, concur.


author: JUSTICE McGILLICUDDY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. REGINALD BRAGG, Defendant-Appellant.
    First District (3rd Division)
    No. 80—2828
    Opinion filed August 1, 1984.

      Steven Clark and Scott Graham, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat and Richard B. Levy, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McGILLICUDDY

delivered the opinion of the court:

Following a jury trial, defendant, Reginald Bragg, was convicted of two counts of aggravated battery and one count of armed violence. The court entered judgment on the armed violence verdict, sentencing defendant to six years in the penitentiary. On appeal, Reginald contends (1) that he was denied his sixth amendment right to effective assistance of counsel by his attorney’s failure to move to dismiss his indictment; (2) that the State failed to prove him guilty beyond a reasonable doubt; (3) that he was denied a fair trial by the prosecutor’s improper remarks in closing argument; and (4) that the court abused its discretion by entering sentence on the armed violence verdict.

Officer John Shields of the Chicago police department testified that on the evening of February 5, 1980, he was on patrol with his partner, Officer Charles Edward, when he responded to a call for help at a bus stop at Homan Avenue and Roosevelt Road in Chicago. He saw the complaining witness, Linda Redmond, “hollering” and a police officer standing next to the defendant, Reginald Bragg. Shields saw an object in Reginald’s hand. As Shields approached, he saw Reginald throw an object away. Shields later found a bluesteel .22-cali-ber revolver in the snow behind the bench at the bus stop. Linda told Shields she had been stabbed. Although a blade was recovered from Linda’s abdomen, the rest of the knife was never found.

At a preliminary hearing on March 20, 1980, before Judge Gino DiVito, Reginald was charged with aggravated battery. Linda testified that she had been standing at the bus stop with Reginald, -with whom she was not acquainted, when he grabbed her from behind and demanded that she kiss him. When she resisted, he stabbed her, and she called for help. Reginald testified that he had been standing at the bus stop with Linda when he merely asked her if she had seen the bus yet. She then, allegedly, pulled out a gun and he stabbed her. He threw the knife away. He testified that Linda threw the gun about 10 feet away. The court found no probable cause to charge Reginald with aggravated battery.

On July 1, 1980, the State brought charges before a grand jury. The assistant State’s Attorney told the grand jury that Reginald was before them on the State’s request for a reindictment; that although a previous grand jury had returned a true bill on charges of aggravated battery, armed violence and attempted murder, he had failed to inform the first grand jury that there had been a finding of no probable cause at Reginald’s preliminary hearing on a charge of aggravated battery. Thus, it was necessary to seek a reindictment. The assistant State’s Attorney then read into evidence the testimony of Shields before the first grand jury. According to this testimony, Reginald had stated that he grabbed Linda from behind. Linda pulled a gun on him. He knocked the weapon from her hand and then stabbed her, leaving the knife blade in her abdomen. Shields testified that the remainder of the knife was never found, but that he found a revolver behind a bench at the bus stop. A juror asked Shields whether the revolver had anything to do with the case. Shields responded that the revolver “checked clear”; it was not registered; and that he could not determine the owner of the revolver. The second grand jury returned a true bill on all charges.

At trial Reginald testified on direct examination that on February 5, 1980, he was on his way to visit his girl friend when he arrived at the bus stop where Linda was waiting. He asked Linda if she had seen the bus. She did not answer and when he looked to see if the bus was coming Linda pulled out a gun. Reginald testified that he grabbed it from her. He struggled with her and he threw the gun on the ground. They continued to struggle and Reginald pulled out his knife and stabbed her.

On cross-examination, Reginald testified that he threw the gun and knife away when he saw the police. He stated that he stabbed Linda after he had thrown down the gun.

Linda’s testimony at trial was substantially the same as her testimony at the preliminary hearing.

The jury found Reginald not guilty of attempted murder; guilty of aggravated battery based on great bodily harm; guilty of aggravated battery based on the use of a deadly weapon; and guilty of armed violence. Sentence was entered on armed violence only. Reginald appeals.

I

Defendant first contends that he was denied the effective assistance of counsel because his privately retained attorney did not move to dismiss the indictment returned by the grand jury.

In People v. Talley (1981), 97 Ill. App. 3d 439, 422 N.E.2d 1084, this court held that the test to determine competency of counsel, whether appointed or privately retained, should be whether counsel was actually incompetent, resulting in substantial prejudice to defendant, without which the result of his trial would have been different. 97 Ill. App. 3d 439, 443.

In the instant matter, Reginald asserts that his attorney erred in not moving to dismiss his indictment following two alleged instances of false testimony before the grand jury. First, Shields’ testimony before the first grand jury, as read to the second grand jury, was that following Reginald’s arrest, Reginald stated that he grabbed Linda Redmond from behind before she pulled a weapon on him, and that he stabbed her after knocking the weapon from her hand. At the preliminary hearing, on the other hand, Reginald stated that Linda had pulled out a gun without provocation as they waited at the bus stop. They struggled, and after Linda dropped the gun Reginald stabbed her.

The other instance complained of was that, when asked by a member of the grand jury whether the revolver found behind the bench at the bus stop had any connection to the case, Shields replied that he had been unable to determine the owner of the revolver.

A trial court has the authority to dismiss an indictment in a criminal case where there has been an unequivocally clear denial of a defendant’s right to due process even though it is not a stated ground in section 114 — 1 of the Code of Criminal Procedure of 1963. (Ill. Rev. Stat. 1979, ch. 38, par. 114 — 1; People v. Lawson (1977), 67 Ill. 2d 449, 367 N.E.2d 1244; People v. Palmer (1982), 111 Ill. App. 3d 800, 444 N.E.2d 678.) An indictment may be dismissed if a denial of due process is established with certainty. (People v. Rivera (1979), 72 Ill. App. 3d 1027, 390 N.E.2d 1259.) However, prejudice must be established to demonstrate error requiring dismissal of a grand jury proceeding. (People v. Jackson (1978), 64 Ill. App. 3d 307, 381 N.E.2d 316.) An indictment need not be dismissed when no intentional false or misleading evidence was presented to the grand jury. People v. Kline (1981), 99 Ill. App. 3d 540, 425 N.E.2d 562.

In People v. Kline, the defendant contended that the State had infringed his right to due process by allegedly concealing from the grand jury evidence which tended to exonerate the defendant. Specifically, before the grand jury, the officer testifying neglected to inform the jury that at that time the State did not have an identification of the defendant’s car. However, the court pointed out that neither did the State represent to the jury that it did have an identification of the car. The court held that when no identification has been made, the State is correct in saying nothing.

This is analogous to Shields’ answer that the gun found behind the bench had not been connected to the defendant or to Linda. Furthermore, we point out that Shields told the grand jury that Reginald stated that Linda had a weapon. The jury may have logically inferred that the gun was that weapon. Certainly, there was no intentional concealment or deception by the State, and Reginald was not in our opinion prejudiced by Shields’ testimony.

An indictment is a formal charge and not a trial on the merits. Therefore, it does not require the degree and quality of proof necessary for a conviction. (People v. Lambersky (1951), 410 Ill. 451, 102 N.E.2d 326.) A defendant may not challenge an indictment on the grounds that it is not supported by adequate evidence. There need only be some evidence relevant to the charge. (People v. Rodgers (1982), 92 Ill. 2d 283, 290, 442 N.E.2d 240.) Guilt or innocence is established at trial. People v. Creque (1978), 72 Ill. 2d 515, 382 N.E.2d 793, cert. denied (1979), 441 U.S. 912, 60 L. Ed. 2d 384, 99 S. Ct. 2010.

In People v. Creque, the defendant argued without success that he had been prejudiced by the prosecutor’s failure to inform the grand jury that he had stopped attacking the victim when his brother urged him to stop. Defendant alleged that this evidence would have showed that he lacked the intent to kill. This is similar to Reginald’s assertion that he was prejudiced by Shields’ statement that Reginald said he grabbed Linda prior to, rather than after, she pulled a weapon on him. However, we do not believe that this was prejudicial to Reginald. He has at all times admitted that Linda was unarmed when he stabbed her. This is sufficient evidence to support a verdict of guilty of aggravated battery and armed violence. Further, there is no reason to believe this was intentional deception by the State. Thus, there was no error in this regard.

Reginald contends that the assistant State’s Attorney erred (1) in informing the second grand jury that defendant was before them on a reindictment, since a previous grand jury had returned a true bill but that jury had not been informed that there was a finding of no probable cause at the preliminary hearing, and (2) in reading into evidence before the second grand jury the testimony of Shields before the first grand jury. These assertions are without merit. It is well established that informing the jury of a prior indictment or the reading of the evidence presented before the prior grand jury does not prejudice an accused. People v. Simmons (1982), 105 Ill. App. 3d 402, 434 N.E.2d 435; People v. Johnson (1981), 97 Ill. App. 3d 1055, 423 N.E.2d 1206, cert. denied (1982), 455 U.S. 951, 71 L. Ed. 2d 667, 102 S. Ct. 1457.

Regarding Reginald’s assertion that the first grand jury was not properly admonished pursuant to section 112 — 4(b) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1979, ch. 38, par. 112— 4(b)), we note that the transcript of the first grand jury proceedings has not been included in the record before this court. Any doubt in a grand jury proceeding should be resolved against the defendant when he has failed to file a transcript of the grand jury proceedings. (People v. Easter (1981), 102 Ill. App. 3d 974, 430 N.E.2d 612.) Furthermore, we believe that any error was cured by the prosecutor’s proper admonishment in the second grand jury proceedings. A court must proceed with restraint in ascertaining an infringement of due process in the indictment procedure. A motion to dismiss an indictment should only be granted when the denial of due process had been found with certainty. People v. Lawson (1977), 67 Ill. 2d 449, 367 N.E.2d 1244.

Therefore, we find that defendant was not denied effective assistance of counsel. The grand jury’s finding was supported by sufficient evidence so that a motion to quash or dismiss would have been unsuccessful.

II

Defendant next contends that he was not proved guilty beyond a reasonable doubt because Linda’s testimony, that she did not pull a gun on Reginald, or see a gun that evening, was allegedly rendered incredible by the testimony of the police officer that a .22-caliber revolver was found at the bus stop. However, it is the function of the jury to determine the credibility of the witnesses and the weight to be given their testimony. (People v. Warmack (1980), 83 Ill. 2d 112, 413 N.E.2d 1254.) A reviewing court will not set aside a jury’s verdict unless the evidence is so improbable as to raise a reasonable doubt of guilt. People v. Yarbrough (1977), 67 Ill. 2d 222, 367 N.E.2d 666; People v. Thompson (1981), 93 Ill. App. 3d 995, 418 N.E.2d 112, cert. de nied (1982), 458 U.S. 1109, 73 L. Ed. 2d 1371,102 S. Ct. 3490.

Our review of the record leads us to conclude that it was reasonable for the jury to believe the events as recounted by Linda, rather than by Reginald. Further, even if Reginald’s assertion that Linda threatened him with a gun were true, it would not create a reasonable doubt as to his guilt. As we mentioned previously, he testified consistently that Linda was unarmed at the time of the stabbing. Therefore, the jury’s convictions for aggravated battery and armed violence were supported by undisputed evidence.

III

Reginald argues that he was denied a fair trial by certain remarks made by the prosecutor in closing argument, which allegedly diminished the importance of the reasonable doubt standard. These remarks were not objected to at trial, nor were they included in defendant’s post-trial motion. Thus, any issue relating thereto would normally have been waived. (People v. Carlson (1980), 79 Ill. 2d 564, 404 N.E.2d 233; People v. Precup (1978), 73 Ill. 2d 7, 382 N.E.2d 227.) However, since defendant has alleged a violation of fundamental fairness, we will address the remarks complained of, pursuant to Supreme Court Rule 615(a) which states in pertinent part:

“*** Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court.” 87 Ill. 2d R 615(a).

During rebuttal closing argument the prosecutor stated:

“Examine, if you will, and apply your common sense. You will be instructed that the state must prove the case. There’s certain burdens beyond a reasonable doubt.
Just a couple of words about that. First of all, it is the same burden the state has in every case in this state. You know from reading the papers that juries come back every day and convict people. It is not an impossible burden to meet.
And, secondly, it is not all doubt. You may say, ‘Gee, Linda Redmond doesn’t know directions.’ That is not a reasonable doubt just because there is some deficiency in her education. It is not a reasonable doubt.”

In determining whether a prosecutor’s closing statements are prejudicial, reference is made to the content of the language used, its relation to the evidence, and the effect of the argument on the rights of an accused to a fair and impartial trial. People v. Franklin (1976), 42 Ill. App. 3d 408, 355 N.E.2d 634.

In People v. Bryant (1983), 94 Ill. 2d 514, 447 N.E.2d 301, our supreme court held that the prosecutor’s statement that the State’s burden of proof was “ ‘not unreasonable’ ” and “ ‘met each and every day in courts’ ” did not reduce the burden of proof (94 Ill. 2d 514, 523), and, thus, did not deny the defendant a fair trial.

We believe the remarks complained of in the case at bar were equally harmless. Although it is prejudicial error to imply that the burden of proof is merely a pro forma or a minor detail (People v. Martinez (1979), 76 Ill. App. 3d 280, 395 N.E.2d 86), in the instant matter we believe the prosecutor’s statement that it was not an “impossible burden” had the opposite effect. It implied that the burden, while not impossible, was nevertheless substantial. Therefore, we find that any error was harmless beyond a reasonable doubt and did not contribute to the jury’s verdict. People v. Ayala (1981), 96 Ill. App. 3d 880, 422 N.E.2d 127.

Reginald also asserts that prosecutorial remarks regarding the indictment by the grand jury were error. However, not only were these remarks clearly invited by defense counsel’s closings argument, but they were also without prejudice to the defendant since they merely compared the burdens of proof in the two proceedings, fairly stating that the trial jury would be the ultimate judge of guilt or innocence. We find no error in this regard.

IV

Defendant asserts that the trial court erred in stating that it was compelled to enter judgment on the armed violence verdict rather than on aggravated battery. In People v. Donaldson (1982), 91 Ill. 2d 164, 435 N.E.2d 477, our supreme court stated that in a situation where a defendant had been convicted of armed violence and aggravated battery causing great bodily harm, both arising from a single physical act, judgment should be entered and sentence imposed on only the more serious offense. Thus, we believe the trial court properly limited its discretion in this regard.

Defendant also asserts, however, that his armed violence conviction should be vacated since it constituted double enhancement, being based upon his conviction of aggravated battery with a deadly weapon under section 12 — 4(b)(1) of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 12-4(b)(l)).

In People v. Haron (1981), 85 Ill. 2d 261, 422 N.E.2d 627, the supreme court decided that an aggravated battery charged under section 12 — 4(b)(1) of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 12 — 4(b)(1)) could not serve as the predicate felony for invoking the armed violence statute. The court stated:

“Our review of the language of the statute and the authorities leads us to conclude that the General Assembly did not intend that the presence of a weapon serve to enhance an offense from misdemeanor to felony and also to serve as the basis for a charge of armed violence. In our opinion the requirement of section 33A — 2 that there be the commission of a felony while armed with a dangerous weapon contemplates the commission of a predicate offense which is a felony without enhancement by the presence of a weapon.” 85 Ill. 2d 261, 278.

In an effort to distinguish the instant matter from Harón, the State points out that Reginald was charged with and convicted of two counts of aggravated battery, one based on great bodily harm (Ill. Rev. Stat. 1979, ch. 38, par. 12 — 4(a)), and one based upon the use of a deadly weapon (Ill. Rev. Stat. 1979, ch. 38, par. 12 — 4(b)(1)). Thus, the State argues that Reginald’s conviction for armed violence should be allowed to stand since it could have been based on the charge under section 12 — 4(a). However, our review of the record discloses that Reginald’s armed violence charge specifically refers to aggravated battery based on the use of a deadly weapon in violation of section 12 — 4(b)(1) and does not refer to section 12 — 4(a).

In People v. Van Winkle (1981), 88 Ill. 2d 220, 430 N.E.2d 987, the armed violence charge against the defendant also referred specifically to 12 — 4(b)(1). Van Winkle’s conviction for armed violence was reversed under the rule established in Haron.

Furthermore, an identical conclusion was reached by this court in People v. Thompson (1983), 114 Ill. App. 3d 662, 449 N.E.2d 159, where the defendant’s armed violence charge referred to both bodily harm and the use of a deadly weapon. Since the charge did not refer to great bodily harm, this court held that it must be assumed to have been predicated on the use of a deadly weapon and constituted double enhancement. Therefore, the armed violence conviction was reversed.

Under this line of cases, we believe that Reginald’s conviction of armed violence clearly constituted double enhancement and must be reversed. We therefore reverse defendant’s conviction for armed violence and remand this cause for sentencing on one of the aggravated battery convictions.

Affirmed in part, reversed in part and remanded.

McNAMARA and WHITE, JJ., concur.