text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOE LEE WHITE, Defendant-Appellant.
    Second District
    No. 2—91—1204
    Opinion filed February 17,1993.

      Theodore Gottfried, Charles M. Schiedel, and Jon E. McPhee, all of State Appellate Defender’s Office, of Springfield, for appellant.

      Michael J. Waller, State’s Attorney, of Waukegan (William L. Browers and Martin P. Moltz, both of State’s Attorneys Appellate Prosecutor’s office, of counsel), for the People.
   JUSTICE BOWMAN

delivered the opinion of the court:

Defendant, Joe Lee White, was convicted of home invasion (Ill. Rev. Stat. 1991, ch. 38, par. 12 — 11(a)(2)), robbery (Ill. Rev. Stat. 1991, ch. 38, pars. 18 — 1(a), (b)), and aggravated battery (Ill. Rev. Stat. 1991, ch. 38, par. 12 — 4(b)(10)). He was sentenced to concurrent prison terms of 40, 30, and 5 years, respectively. On appeal, defendant contends that the State did not prove him guilty beyond a reasonable doubt, that error occurred in the trial court’s comments on weight accorded expert fingerprint testimony, that no evidence was entered as to the age of the victim as required for the two crimes in which the victim must be age 60 years or older, that the defendant’s conviction of aggravated battery is barred under the one-act, one-crime doctrine, and that defendant was denied due process of law where an extended-term sentence was imposed based on the aggravating factor of victim’s age when no evidence of age had been presented. We affirm in part, modify in part, vacate in part, and remand to the trial court for resentencing.

Margaret and Harry Lauritson were residents of Waukegan and were away from their home on July 4, 1991. James Christensen, a long-time boarder in the residence, was house sitting in their absence. Around 9:15 p.m., Mr. Christensen was sitting in the downstairs living room watching television. He heard a noise on the front porch and got up to see what was the source of that noise. A man rushed in and struck him hard in the chest, knocking him to the floor and knocking off his glasses. The man grabbed Christensen’s wallet and left. The incident happened in less than 30 seconds.

Shortly after the crime, evidence technician Thomas Ambrose dusted for fingerprints. He lifted a latent fingerprint from the inside of the outer front door of the enclosed front porch of the Lauritson home. The following day, in a matter unrelated to Christensen’s robbery, Waukegan police officer Elaine Delaney took inked fingerprints of the defendant Joe Lee White.

On July 7, Detective Paul Hendley showed Christensen two photographic lineups. One of those lineups contained a picture of defendant. Christensen responded that he would not be able to identify the man who attacked him, because his glasses had been knocked off and, according to the record, “everything happened so fast.”

On July 11, Investigator Donald Verbeke filed a report which concluded that the latent fingerprint lifted by Ambrose matched the ring finger on the inked card of defendant prepared by Delaney. The next day, Detective Donald Meadie showed Christensen a photo array which included defendant’s picture. Again, Christensen was unable to identify any of the men shown as his assailant. One week later defendant was indicted on charges of home invasion, aggravated battery (based on Christensen’s age), and robbery.

Trial took place September 3-5, 1991. Christensen testified that the incident happened “in a flash.” He had no chance to focus on the intruder’s features and was able only to state that the man was black, between 5 feet 11 inches and 6 feet tall, and was wearing certain clothes. Christensen did not testify as to how old he himself was.

Using side-by-side mounted photographs of the latent fingerprint found on the inside of the storm door of the Lauritson home and the inked print of defendant’s left ring finger, expert witness Donald Verbeke testified that the formation of the characteristics in each print was exactly the same. He noted that there were 13 similar characteristics charted in the exhibit. He also stated that there were 10 to 20 other characteristics that had not been illustrated. Verbeke came, to the conclusion that the latent print and the inked print were made by the same person. He stated that he did not know when the print was impressed on the door.

Defendant’s wife, Deborah White, along with Milana McClinton, Dante Roberts, and Barbara Carley LeFlore, all of whom lived in the Whites’ apartment complex, testified as to defendant’s whereabouts on July 4. Since it was a holiday, witnesses testified that defendant spent much of it getting his hair permed, watching his three children, and relaxing with neighbors and family as barbecuing took place at the apartment complex.

The eyewitness testimony was somewhat conflicting. For instance, Mrs. White testified as to being picked up by defendant at her mother’s house in North Chicago at 8 p.m. It was about a 15 to 20 minute drive from defendant’s home in Waukegan to Mrs. White’s mother’s home in North Chicago. She reported that they arrived at home about 8:30. Then, once at home, defendant remained outdoors at the apart- • ment complex, while his wife went inside, took a bath and a nap until about 10 p.m. Ms. McClinton stated that she saw defendant around the apartment complex at 8:15 p.m., before she left to go to a fireworks exhibition. She arrived home at 10 p.m. Ms. LeFlore found it hard to identify a time in the evening when she talked to defendant, but it was between “light and dark.” She also testified that it was hard to state a time because she had been drinking and could not remember exact times. Dante Roberts testified to seeing the defendant at the apartment complex at several times between 7:45 and 8:30 p.m. At 8:30 p.m. Roberts left to go to a fireworks exhibition, and did not return until 10 p.m. The defendant was reportedly seen at the apartment complex when witnesses McClinton and Roberts arrived home at 10 p.m.

In closing arguments the State argued to the jury that “fingerprints don’t lie.” Furthermore, the State contended that none of the defense witnesses could place the defendant at his apartment complex at 9:15 p.m., the precise time of the crime.

In closing argument, defense counsel argued that fingerprints may not lie, yet they may be misinterpreted. Counsel then asked the jury to consider the dissimilarities between the fingerprints. Counsel then began to point out dissimilarities between the fingerprints. In response to the State’s objection, the record reveals that the court stated:

“These fingerprints are subject to expert opinion. It’s not proper for either counsel to ask the jury to arrive at their [sic] opinions as to the similarities of the fingerprints or for either counsel to voice an opinion. That’s subject to expert opinion.”

Defense counsel continued and insisted that there were visible dissimilarities between the two prints. In response to the State’s objection that counsel was trying to put in evidence, the record shows that the court stated:

“Gentlemen, both of you have made some vague suggestion that the jury compare the fingerprints. These fingerprints are subject to an expert opinion. An expert has looked at the two fingerprints, the known and the unknown, and voiced an opinion. The jury is not to ***.”

The court then instructed the jurors to confine themselves to the facts in evidence that they heard from the witness stand and to the reasonable inferences which could be drawn from these facts.

The jury was instructed that, in order to sustain the charge of Class I robbery in this case, they must specifically find that Christensen was 60 years of age or older. The jurors were additionally instructed that to find the defendant guilty of aggravated battery, they must find that defendant had knowledge that Christensen was a person over the age of 60. The jury was also instructed that the members of the jury were the sole judges of the believability of the witnesses and of the weight to be given to the testimony of each of them.

The jury returned verdicts of guilty of home invasion, robbery and aggravated battery. Defendant timely filed a post-trial motion. The court sentenced defendant to five years’ imprisonment on the aggravated battery. For the offense of robbery of a person over 60, defendant was sentenced as a Class X offender to 30 years, based on a finding that defendant had been twice convicted of a Class 2 or greater felony in Illinois. He was sentenced to an extended imprisonment term of 40 years for home invasion, the aggravating factor being a specific finding that the victim was 73 years of age. Defendant timely filed a notice of appeal.

Defendant contends that the State did not sustain its burden of proof because it was not able to show that defendant’s fingerprint was impressed on the door at the time of the crime. Here, the court is faced with a challenge to the sufficiency of the evidence. The relevant inquiry is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of a crime beyond a reasonable doubt. (People v. Campbell (1992), 146 Ill. 2d 363, 374; People v. Collins (1985), 106 Ill. 2d 237, 261.) This standard is applicable in all criminal cases, regardless of whether the evidence is direct or circumstantial. (Campbell, 146 Ill. 2d at 374; People v. Pintos (1989), 133 Ill. 2d 286, 291.) The standard gives “full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” (Jackson v. Virginia (1979), 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789; Campbell, 146 Ill. 2d at 375.) Therefore, this court will not substitute its judgment for that of the fact finder on questions involving the weight of the evidence or the credibility of the witnesses. (Campbell, 146 Ill. 2d at 375.) In addition, this court will not reverse a criminal conviction unless the evidence is so unreasonable, improbable, or so unsatisfactory as to justify a reasonable doubt of the defendant’s guilt. Campbell, 146 Ill. 2d at 375.

When a conviction rests on circumstantial evidence, it is not necessary that the jury be satisfied beyond a reasonable doubt as to each link in the chain of circumstances. (People v. Jones (1985), 105 Ill. 2d 342, 350.) Rather, it is sufficient if all the circumstantial evidence taken together satisfies the jury beyond a reasonable doubt of the defendant’s guilt. Jones, 105 Ill. 2d at 350.

Fingerprint evidence is circumstantial evidence which attempts to connect the defendant to the offense charged. (People v. Malmenato (1958), 14 Ill. 2d 52, 62, cert. denied, (1958), 358 U.S. 899, 3 L. Ed. 2d 148, 79 S. Ct. 222.) When a conviction is based solely on fingerprint evidence, the fingerprints must have been found in the immediate vicinity of the crime and under such circumstances that they could only have been made at the time the crime occurred. People v. Rhodes (1981), 85 Ill. 2d 241, 249.

The temporal proximity requirement may be satisfied by the State showing that the object on which the fingerprint appears was inaccessible to the accused prior to the commission of the crime. This is usually done by the demonstration that the location of the fingerprint was in a place not accessible to the public. There are several cases in which fingerprint evidence considered in the context of the other evidence was sufficient to sustain a conviction. For instance, in People v. Taylor (1965), 32 Ill. 2d 165, defendant’s fingerprints were located on the inside of a lower window sash at the site of entry into the victim’s home. Similarly, the defendant’s fingerprint in Rhodes was found on a shard of broken glass six inches from the broken kitchen window which evidently was the point of entry into the house. In that case, the kitchen window was enclosed by a locked porch enclosure. (People v. Rhodes (1981), 85 Ill. 2d 241.) In People v. Reno (1975), 32 Ill. App. 3d 754, defendant’s fingerprint was located on a package of cigarettes found within the murder victim’s purse and “chain of contact” evidence established that the fingerprint was defendant’s. In People v. King (1985), 135 Ill. App. 3d 152, defendant’s palm print on a recently washed car parked in a detached garage was sufficient to sustain defendant’s conviction of burglary of the garage, although not sufficient to sustain defendant’s conviction of residential burglary.

In the present case, the implicating fingerprint was located on the inside of the front porch door. The porch is an enclosed structure, attached to the front of the Lauritsons’ house. The porch has an exterior storm door and an inside door, which is constructed of paned glass. To get to the front porch door, one must proceed up a sidewalk from the street and mount a four-step staircase. The fingerprint was located on the inside surface of the porch storm door, above the handle on the door frame surface. The owners of the home both testified that they did not know the defendant, that they never saw him around their house, and that they had no social or business dealings with him.

The defendant maintains that the fingerprint was not located in a private place, such as within the victim’s residence, but in a place accessible to the public. The defendant analogizes this case to People v. Poole (1981), 99 Ill. App. 3d 939. In that case, a woman was awakened in her apartment when an intruder struck her on the head. The woman was not able to identify the intruder. The defendant’s fingerprint was subsequently found on the exterior surface of the victim’s apartment door, about 12 inches above the door handle. The door opened into the common hallway of the victim’s apartment building. A search of the defendant’s apartment did not reveal the camera stolen from the victim’s apartment. There was additional evidence that the defendant had been in the victim’s apartment building at a time previous to the crime, at an apartment in a different part of the building. Furthermore, there was testimony that it was impossible to determine when the print was impressed.

The court found that it was possible that the print was impressed at a time unrelated to the crime because the print was in a place accessible to the public and the defendant had been in the building on an earlier occasion. (Poole, 99 Ill. App. 3d at 941.) Furthermore, it was evidently impossible to tell when the print had been impressed. Poole, 99 Ill. App. 3d at 940.

The Poole case can be distinguished from the present case despite the fact that there was no evidence about when the fingerprint was impressed on the door in this case. For instance, in the present case, we have the testimony of the owners of the house that they had no business or social dealings with the defendant. Thus, there is no way to demonstrate the defendant was inside the porch touching the door at some time other than the time of the crime. Furthermore, while the outside door to the victim’s apartment in Poole was a public hallway in an apartment building, the inside of the Lauritsons’ door in the present case is a place removed from the public. For the public to have access to that location, one would have to walk up the front walk to the Lauritsons’ house, mount the steps, and open the door to impress a fingerprint on the inside of the storm door.

This court believes that the inside surface of this front porch door was too private to be considered accessible to the public. Furthermore, there is no evidence to place the defendant at the scene of the crime at a time prior to the crime. Thus, this court holds that a rational jury could find the defendant guilty beyond a reasonable doubt on the basis of the fingerprint evidence considered in the context of the other evidence.

Defendant’s second contention is that the trial court’s comments on the weight accorded expert testimony were improper, therefore denying defendant a fair trial. In criminal proceedings, an accused is entitled to a fair trial by a jury. A fair trial contemplates that the jury alone will fulfill its duty of determining the facts. (People v. Marino (1953), 414 Ill. 445, 450.) The ultimate decision of fact must be fairly left to the jury. Judges must refrain from communicating to the jury their personal opinion concerning any disputed fact. (People v. Finn (1959), 17 Ill. 2d 614, 617.) The trier of fact must consider the totality of the evidence, weighing the testimony, both lay and expert, without being required by law to accept expert opinion. (People v. Eckhardt (1989), 156 Ill. App. 3d 1077, 1096.) A jury need not accept expert testimony to the exclusion of other evidence. It may reject such testimony if it considers the other evidence more probative. People v. Bradney (1988), 170 Ill. App. 3d 839, 855.

In the present case, the defense had the opportunity to cross-examine the State’s expert witness or to produce another expert that would contradict the opinion that the State’s witness exhorted. According to the record, during cross-examination of the State’s expert witness, the defense did not identify or ask the witness to identify any dissimilarities between the defendant’s fingerprint and the fingerprint taken from the scene of the crime. Furthermore, the defense did not introduce its own expert witness to interpret the fingerprint evidence. Subsequently the defense, during closing argument, discussed the fact that there were dissimilarities in the two fingerprints which the expert witness had concluded were made by the same finger. According to the record, defense counsel made statements to point out the dissimilarities and they were objected to by the State. That is when the trial court made its first comment:

“These fingerprints are subject to expert opinion. It’s not proper for either counsel to ask the jury to arrive at their [sic] opinions as to the similarities of the fingerprints or for either counsel to voice an opinion. That’s subject to expert opinion.”

Defense counsel purports that the comments went to the weight the jury should ascribe to expert testimony. This court disagrees. The first comment related to the topic of fingerprint evidence being the subject matter of expert testimony. Then defense counsel went on to point out other dissimilarities in the fingerprints. The State again objected, and the trial court made a second statement:

“Gentlemen, both of you have made some vague suggestion that the jury compare the fingerprints. These fingerprints are subject to an expert opinion. An expert has looked at the two fingerprints, the known and the unknown, and voiced an opinion. The jury is not to ***.”

The jury was subsequently instructed that it was the sole judge of the believability of the witnesses.

This court believes the trial court’s comments were proper for two reasons. First, it was improper for defense counsel to introduce new evidence during closing argument. Counsel cannot supply by way of closing arguments to the jury new or additional facts that are not in the record. (Flynn v. Cusentino (1978), 59 Ill. App. 3d 262, 267.) Second, the judge properly indicated that it was improper for the jury or the counsel to express an opinion on the similarity or dissimilarity of the fingerprint from the door and the defendant’s fingerprint because fingerprint evidence is the subject matter of expert testimony. Expert testimony is admissible when the subject matter of the inquiry is such that only persons of skill and experience in it are capable of forming a correct judgment as to any facts related to it. (People v. Jennings (1911), 252 Ill. 534, 549-50.) Fingerprint evidence is properly the subject matter of expert testimony. (Jennings, 252 Ill. at 550.) The jury and counsel were not expert witnesses in this case. Thus, according to the record, the court stated, “it’s not proper for either counsel to ask the jury to arrive at their [sic] opinions *** or for either counsel to voice an opinion.” Furthermore, as to the issue of the proper weight to ascribe to the evidence, the trial court properly instructed the members of the jury that only they are to determine how much weight to give evidence based on the credibility of the witnesses.

The defendant asserts that he was prejudiced because the comments regarding expert testimony undercut defendant’s alibi defense. This court does not agree. The statement of instructions by the trial court correctly instructed the jurors that they were to decide how much weight to accord the testimony of different witnesses, since they were the sole judges of credibility. By giving this instruction, defendant’s alibi defense could not be undercut by the inference that the expert’s conclusion was unassailable. Thus, this court finds that the trial judge’s comments were proper, and this defendant was not denied a fair trial.

Defendant’s third contention is that the State failed to offer any evidence of the victim’s age, so the defendant was not proven guilty beyond a reasonable doubt of the charges of Class I robbery and aggravated battery based on the victim’s age. The victim was never asked his age when he testified, and no evidence of his age was given to the jury. For the charge of Class I robbery, the jury was given instruction No. 14.04A from the Illinois Pattern Jury Instructions. (Illinois Pattern Jury Instructions, Criminal, No. 14.04A (2d ed. Supp. 1989) (hereinafter IPI Criminal 2d No. 14.04A (Supp. 1989)).) This instruction required a specific finding that “the person from whom the defendant took property was sixty years of age or over.” On the charge of aggravated battery, the jury was given the IPI instruction No. 11.10. (IPI Criminal 2d No. 11.10.) This instruction required the jury to find that the defendant “knew James Christensen to be over the age of 60.”

The prosecution has the burden of proving beyond a reasonable doubt all the material and essential facts constituting the crime. This responsibility remains that of the prosecution throughout the trial. People v. Weinstein (1966), 35 Ill. 2d 467, 470.

Public Act 85 — 691, effective January 1, 1988, amended the robbery statute to raise robbery from a Class 2 to a Class 1 felony if the victim is 60 years of age or over or physically handicapped. (Ill. Ann. Stat., ch. 38, par. 18 — 1, Historical & Statutory Notes (Smith-Hurd Supp. 1992).) In People v. Hicks (1987), 119 Ill. 2d 29, 34, the court held that where the legislature has amended a criminal statute to add an element which would enhance the offense to a higher class, the element must be pleaded and proved beyond a reasonable doubt to the trier of fact during the evidentiary phase of the trial. The Hicks court held that the charge of misdemeanor theft may be enhanced to felony theft when defendant’s previous conviction of theft is proved beyond a reasonable doubt.

As regards the present case, the Illinois Supreme Court committee on jury instructions in criminal cases added an instruction in its committee notes to the effect that the Hicks rationale should be followed for the charge of robbery where the victim is age 60 or over. (IPI Criminal 2d Nos. 14.03A, 14.04A. (Supp. 1989).) We note that Hicks has been superseded by statute, as noted in People v. Williams (1989), 191 Ill. App. 3d 119, 120, but we believe that the rationale of Hicks applies to this case. The legislature passed a statute to supersede Hicks on the ground that the prejudice is too great to defendant when prior convictions are revealed to the jury. In the present case, no such prejudice would exist upon the revelation of the victim’s age to the jury. In light of the Hicks rationale, and the committee’s position as evidenced in the notes, we hold that the State must prove beyond a reasonable doubt that the victim was over 60 years of age in order to sustain the conviction of Class I robbery where the victim is over 60 years of age. This burden was not sustained in this case. The jury never heard evidence that the victim was over 60 years old. Thus, the degree of the conviction of robbery is reduced to a Class 2 felony, and the case is remanded to the trial court for resentencing on the modified judgment of robbery pursuant to Supreme Court Rule 615(b)(3). 134 Ill. 2d R. 615(b)(3).

Public Act 81 — 763, effective September 16, 1979, added persons 60 years of age or older to a protected class of people upon whom an ordinary battery would be treated as an aggravated battery because those people are members of the protected class. (Ill. Ann. Stat., ch. 38, par. 12 — 4, Historical & Statutory Notes (Smith-Hurd Supp. 1992).) For this offense, instead of being included in the sentencing portion of the act as was the case for the enhancing element of the robbery offense, the aggravating factor of the victim’s age in the aggravated battery statute appears as the substantive element of that offense. Ill. Rev. Stat. 1991, ch. 38, par. 12 — 4(b)(10).

In the present case, the court instructed the jury that it must find that the defendant “knew” the victim was 60 years of age or over when the battery was committed. The pattern jury instruction No. 11.10 was rather ambiguous. Instruction No. 11.10 advised the parties to “[pjrepare as required alternative [issues] paragraphs for the specified victims and locations contained in Instruction 11.09.” (IPI Criminal 2d No. 11.10.) Instruction No. 11.09 defines an aggravated battery based on the victim’s age as occurring only if defendant “knowingly and without lawful justification and by any means causes bodily harm to an individual of 60 years of age or older.” (IPI Criminal 2d No. 11.09.) Thus, the issue arises, how should this court interpret “knowingly *** causes bodily harm to an individual of 60 years of age or older”?

The knowledge element refers to the mens rea for the offense and does not mean that defendant had to have prior knowledge of the victim’s age. The court in People v. Jordan (1981), 102 Ill. App. 3d 1136, 1139, did a legislative history analysis of the part of the Criminal Code of 1961 that deals with aggravated battery based on the victim’s age (Ill. Rev. Stat. 1979, ch. 38, par. 12 — 4(b)(10)). It concluded that prior knowledge of the victim’s age was not an element of the offense. (Jordan, 102 Ill. App. 3d at 1139.) The court noted that during debate the legislature compared the lack of scienter in section 12— 4(b)(10) to other criminal statutes which do not require the State to prove that the defendant was aware of his victim’s age. To require such knowledge would be to nullify the statute, because a person’s age is not as readily ascertainable as the status of a person, such as fireman or policeman. Thus, the court concluded that the legislature did not intend section 12 — 4(b)(10) to require the State to prove as an element of the offense that the defendant had prior knowledge of the victim’s age. Jordan, 102 Ill. App. 3d at 1139.

On a charge of aggravated battery, it is the existence of the aggravating factor that must be proven beyond a reasonable doubt. (People v. Clark (1979), 70 Ill. App. 3d 698, 699-700.) If age is an element of an offense or an aggravating factor, it must be proven beyond a reasonable doubt. (People v. Sanders (1989), 191 Ill. App. 3d 483, 485-86.) In this case, the State was required, and failed, to prove the age of the victim to sustain the charge of aggravated battery. The defendant’s aggravated battery conviction is reduced to battery and the cause is remanded to the trial court for resentencing on the modified judgment of battery pursuant to Supreme Court Rule 615(b)(3). Clark, 70 Ill. App. 3d at 700-01; 134 Ill. 2d R. 615(b)(3.)

Defendant asserts and the State agrees that since the conduct involved in the aggravated battery was also the predicate conduct necessary to sustain the charge of home invasion, the defendant’s conviction of aggravated battery is barred under the one-act, one-crime doctrine and must be vacated. Defendant further argues that aggravated battery is a lesser included offense of home invasion and on that basis the conviction of aggravated battery should be vacated.

The controlling statute at the time of the offense and sentencing was section 5 — 8—4(a) of the Unified Code of Corrections (Ill. Rev. Stat. 1991, ch. 38, par. 1005 — 8—4(a)), which stated in pertinent part:

“The court shall not impose consecutive sentences for offenses which were committed as part of a single course of conduct during which there was no substantial change in the nature of the criminal objective ***.”

Multiple convictions cannot be carved from the same physical act. (People v. King (1977), 66 Ill. 2d 551, 566.) In this case, it is clear that the same predicate act which led to the conviction of aggravated battery is exactly the conduct necessary to sustain the charge of home invasion. Also, this court has found that the aggravated battery conviction should be reduced to a battery conviction. Thus, this court holds that on the basis of King the battery conviction should be vacated. Since we have held that the battery conviction should be vacated on that basis, it is not necessary for this court to decide whether battery constitutes a lesser included offense of home invasion.

The defendant argues that he was denied due process when an extended-term sentence was imposed upon the defendant in the home invasion charge based on the aggravating factor of the victim’s age, since the defense argues that no reliable evidence of age had been presented. Pursuant to the extended-term portion of the statute, the trial court may sentence the defendant to an extended term if factors in aggravation are present. (Ill. Rev. Stat. 1991, ch. 38, par. 1005— 8 — 2.) One of the factors in aggravation is present when the defendant committed the offense against a person 60 years of age or older. (Ill. Rev. Stat. 1991, ch. 38, par. 1005 — 5—3.2(a)(8).) On appeal, a sentence may be reduced pursuant to Supreme Court Rule 615(b)(4). (134 Ill. 2d R. 615(b)(4).) The imposition of a sentence is a matter of judicial discretion and, absent abuse of that discretion, the sentence of the trial court may not be altered on review. (People v. Perruquet (1977), 68 Ill. 2d 149, 153.) The ordinary rules of evidence need not be followed during a sentencing hearing. (People v. Adkins (1968), 41 Ill. 2d 297, 301.) Evidence presented to the sentencing court must be competent and material, and the sentencing court may search diligently for evidence which will be relied upon in aggravation or mitigation. People v. Devine (1981), 101 Ill. App. 3d 158,166.

In the present case, there is a statement in the presentence report that the victim was age 73. Illinois courts rely on the presentence report to weight factors in sentencing. (People v. Youngbey (1980), 82 Ill. 2d 556, 565.) In this case, according to the record, the trial court considered the presentence report. The record indicates that the trial judge stated that he “[found] that on July 4th, 1991, James Christianson [sic] was aged 73.” Thus, although no evidence was presented as to the age of the victim at trial, the judge, in sentencing, did have access to evidence of that fact. Thus, this court finds that the trial court did not abuse it’s discretion in imposing an extended-term sentence where the presentence report revealed that the victim was over 60 years of age.

For the reasons presented above, we affirm defendant’s conviction of home invasion, modify defendant’s conviction of robbery from a Class 1 to a Class 2 offense, and vacate the battery conviction. Furthermore, we remand the robbery conviction to the trial court for re-sentencing. .

Affirmed in part; modified in part; vacated in part and remanded.

INGLIS, P.J., and UNVERZAGT, J., concur.


source: Caselaw Access Project

author: JUSTICE LYTTON

license: Public Domain

text:
      In re MARRIAGE OF MARY BROWN, Petitioner and Counterrespondent-Appellee, and FREDRIC BROWN, Respondent and Counterpetitioner-Appellant.
    Third District
    No. 3—92—0123
    Opinion filed February 18, 1993.

      Sacks, Albrecht, Copeland & Sacks, of Kankakee (Leonard F. Sacks, of counsel), for appellant.
    Stephen Jaffe, of Chicago, for appellee.
   JUSTICE LYTTON

delivered the opinion of the court:

Mary and Fredric (Fred) Brown were divorced pursuant to a judgment of dissolution of marriage entered by the circuit court of Kankakee County on December 2, 1991. Fred presents three questions on appeal: (1) whether the court improperly included the goodwill of Fred’s corporations as a divisible marital asset; (2) whether the court lacked competent evidence on the value of the corporations upon which it could base a just property settlement and maintenance award; and (3) whether the court abused its discretion by awarding Mary $l,500-per-month maintenance for five years in light of the property awarded her and Fred’s ability to pay. We affirm the trial court on all three issues.

Mary filed a petition for legal separation in July 1990. Fred filed a response to the petition for legal separation and a counterpetition for dissolution of marriage in August 1990. Trial was held over two days in July 1991 and September 1991, with testimony given exclusively by Fred and Mary. There were no expert witnesses for either party.

The evidence introduced at the trial established that the parties were married in 1969, and had two children, Lisa and Lori, 20 and 18 years of age, respectively. The family home had been purchased in 1985 for $73,000. At the time of trial, $60,000 was owed on the mortgage. While the home had not been appraised, Fred believed that its value was $149,000.

Fred is the president and 50% shareholder of Brown-Miller Corp. (Brown-Miller), a closely held corporation whose principal business is the sale and distribution of plumbing products. Brown-Miller maintains a consignment inventory and operates under a series of 30-day contracts with a number of plumbing supply manufacturers that give Brown-Miller territorial rights for northern Illinois. Brown-Miller has been operating in this manner for over 10 years with a progressive increase in gross receipts and profits. According to Brown-Miller’s corporate income tax returns, the gross profits for Brown-Miller were $512,458 for 1987, $610,270 for 1988, and $657,710 for 1989.

Fred is provided a company car and is salaried by Brown-Miller at $89,000 per year. His salary was voluntarily decreased in 1989 from $105,000. Fred and Jack Miller, the other shareholder and principal in Brown-Miller, decide the amount of salary.

In 1986, Brown-Miller sold a portion of its territorial rights with Chicago Faucet Company in eastern Iowa to the Zeil Company for $30,000.

Fred testified that he had no opinion as to the value of his shares in Brown-Miller.

In addition to Brown-Miller, Fred has 50% and 33% interests, respectively, in two other related businesses that are housed in the same rental facility as Brown-Miller, Benchmark Showcase Ltd. (Benchmark), and Balmoral Group Ltd. (Balmoral). Fred does not receive a salary from Balmoral, and, with the exception of a $5,000 bonus taken in 1988, has not received a salary from Benchmark. The three businesses are interrelated, have interlocking management, and combined generate approximately $1 million per year in gross receipts.

The court awarded Mary, in part, the family home subject to a $60,000 mortgage for which she was responsible, a 1987 Buick Riviera subject to a $7,200 loan for which she was to pay, and a $100,000 property distribution payable at $1,500 per month. Additionally, Mary was awarded $1,500 per month in rehabilitative maintenance for five years. Fred was awarded, in part, his shares in the stock of his three companies and his pension.

When reviewing a trial court’s distribution of marital assets, this court will not disturb the trial court’s judgment unless there has been a clear abuse of discretion. (In re Marriage of Bush (1991), 209 Ill. App. 3d 671, 677, 567 N.E.2d 1078.) An abuse of discretion occurs when, in view of all the circumstances, no reasonable person would take the view adopted by the trial court. In re Marriage of Jones (1989), 187 Ill. App. 3d 206, 227, 543 N.E.2d 119.

Fred’s initial assertion of error is that the trial judge improperly valued Fred’s goodwill by taking the goodwill into account twice. According to Fred, the court improperly valued Fred’s goodwill in considering his future income potential, and also in valuing it as a marital asset that is subject to division.

Although it is improper for a trial court to duplicatively value the element of goodwill in determining a party’s ability to generate future income, and again for valuing a party’s interest in an ongoing business (In re Marriage of Zells (1991), 143 Ill. 2d 251, 256, 572 N.E.2d 994), Fred has failed to point to any ruling made by the trial court that would support his argument.

Fred’s sole support for his argument is found in the trial court’s October 3, 1991, memorandum, which states in part:

“There is obviously a good deal of good will in these companies, for as defendant pointed out, the stock would not be worth much without the presence of Miller and himself. *** The stock will be awarded to [Fredric]. It is the court’s belief the stock is more valuable than the equity in the residence, and that imbalance should be made up in cash.”

The court’s discussion of goodwill recognized the success of Brown-Miller, and the undesirability of forcing a sale of stock, for, without a principal’s active involvement in the corporation, the stock’s value is substantially lessened. (In re Marriage of Carini (1983), 112 Ill. App. 3d 375, 445 N.E.2d 412.) We agree with the trial court that a sale of the stock would be “disastrous.” Nothing in the record indicates that the court improperly considered goodwill a divisible marital asset.

Our supreme court has stated that any value of goodwill in a business is inherently reflected in the factors considered in reaching a just property distribution under section 503(d) of the Illinois Marriage and Dissolution of Marriage Act (Dissolution Act) (Ill. Rev. Stat. 1991, ch. 40, par. 503(d)). (In re Marriage of Zells, 143 Ill. 2d at 256, adopting the reasoning of this court in In re Marriage of Courtright (1987), 155 Ill. App. 3d 55, 507 N.E.2d 891.) Here, the trial court’s October 3, 1991, memorandum indicates that it considered each of the elements of section 503(d) in arriving at its distribution of the marital assets.

We find that the trial court did not value Fred’s goodwill in a duplicative manner and did not abuse its discretion in considering the goodwill of Fred’s companies.

Fred next asserts that the trial court lacked competent evidence upon which it could base a just property settlement, specifically that the trial court erred by failing to assign a value to Fred’s stock interests in the three companies. A trial court is not required to place a specific value on each item contained within the marital estate; however, it must have competent evidence of the value of the property to support a distribution. (Courtright, 155 Ill. App. 3d at 59.) It is the parties’ obligation to present the court with sufficient evidence of value of the marital assets. Courtright, 155 Ill. App. 3d at 59.

The court had before it the income tax returns of the three companies for the years 1987-1989, as well as Fred’s personal income tax returns for the years 1987-1989. Testimony was given regarding the value of the territorial sale by Brown-Miller to the Zeil Company in 1986. The personal property of the three companies was insured for $100,000. Additionally, a “keyperson” insurance policy in the amount of $200,000 was taken out on Fred in which Brown-Miller was the named beneficiary.

Fred argues that the “keyperson” policy was not competent evidence upon which to value the corporation, since there was conflicting testimony as to how the policy proceeds were to be used. Fred believed that the proceeds should be used to buy the stock from the decedent’s spouse, while his associate, Jack Miller, felt that the proceeds would be used to replace the decedent in the business.

It was certainly within the province of the trial court to weigh and consider the evidence and adopt Fred’s own understanding of the intent in the purchase of the “keyperson” insurance by Brown-Miller. See Ayers v. Ayers (1978), 61 Ill. App. 3d 936, 378 N.E.2d 792.

“Keyperson” insurance is essentially a way to fund a buy-sell agreement between principals in a closely held corporation, like Brown-Miller. Although the policy was issued in 1984 and has been without modification since that date, there was no evidence introduced that the value of Brown-Miller’s stock has decreased. To the contrary, the evidence indicates that the value of the stock has increased due to a steady growth in the gross receipts and profits without a proportionate increase in debt. Therefore, the policy is probably an undervalued estimate of the stock’s worth.

The goal of a trial court faced with valuing a corporation is to ascertain the market value of the stock. Market value has been defined as “the price which a "willing purchaser "will pay a "willing seller in a voluntary transaction.” (In re Marriage of Olsher (1979), 78 Ill. App. 3d 627, 635, 397 N.E.2d 488.) Because stock of a closely held corporation is not actively sold on an open market, value is difficult to ascertain. It was proper, therefore, in the instant case, for the trial court to consider all of the circumstances of the corporation, including its finances and business, in determining a value for the distributable marital asset. See Flynn v. Zimmerman (1960), 23 Ill. App. 2d 467, 478, 163 N.E.2d 568, appeal denied (1960), 18 Ill. 2d 628; Ayers v. Ayers (1978), 61 Ill. App. 3d 936, 378 N.E.2d 792.

Finally, Fred asserts that the court abused its discretion in awarding Mary $1,500 per month in maintenance in light of the property awarded to Mary and his ability to pay. The reasonableness of the maintenance award is within the sound discretion of the trial court. (In re Marriage of Carini (1983), 112 Ill. App. 3d 375, 445 N.E.2d 412.) The distribution of marital property is only one of the factors to be considered in an award of maintenance. The court may award maintenance if it makes findings under section 504 that the spouse' seeking maintenance:

“(1) lacks sufficient property, including marital property apportioned to him, to provide for his reasonable needs, and
(2) is unable to support himself through appropriate employment or is the custodian of a child whose condition or circumstances make it appropriate that the custodian not be required to seek employment outside the home, or
(3) is otherwise without sufficient income.” Ill. Rev. Stat. 1989, ch. 40, par. 504(a).

The Dissolution Act allows for rehabilitative, time-limited maintenance in order for the spouse to have the incentive to diligently pursue the training or education required to gain employment, and thus, self-sufficiency. (In re Marriage of Kusper (1990), 195 Ill. App. 3d 494, 500, 552 N.E.2d 1023.) This goal of self-sufficiency must, however, be balanced against the realistic likelihood that the spouse will be able to attain a level of support comparable to the standard of living enjoyed during the marriage, especially where the spouse has not been in the work force for a long period of time. In re Marriage of Pearson (1992), 236 Ill. App. 3d 337, 347, 603 N.E.2d 720.

When determining the amount and duration of maintenance to be awarded, the trial court must consider the enumerated factors of section 504(b):

“(1) the financial resources of the party seeking maintenance, including marital property apportioned to him, and his ability to meet his needs independently ***;
(2) the time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment;
(3) the standard of living established during the marriage;
(4) the duration of the marriage;
(5) the age and the physical and emotional condition of both parties;
(6) the ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance; and
(7) the tax consequences of the property division upon the respective economic circumstances of the parties.” Ill. Rev. Stat. 1989, ch. 40, par. 504(b).

Mary acted as homemaker for the family unit during the 22-year marriage. The Browns enjoyed an above-average lifestyle, including vacations and membership at a country club. Although Mary complained of back problems, the court found her capable of employment. In recognition of Mary’s high school education, the court encouraged Mary to pursue low-cost higher education available near her home.

In light of the trial court’s findings that Fred’s salary was voluntarily decreased in anticipation of the instant litigation, that Fred has continued to maintain his level of lifestyle, that Mary is ordered to maintain the family home for the children until their college education is completed, that Mary is responsible for the payment of the $60,000 mortgage and the $7,200 loan on the 1987 Buick Riviera, and that Mary is currently unemployed, this court holds that the trial court did not abuse its discretion in awarding Mary maintenance of $1,500 a month for five years.

For the reasons stated above, the judgment of the circuit court is affirmed.

Affirmed.

BARRY and BRESLIN, JJ., concur.


author: PRESIDING JUSTICE McCUSKEY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. FREDERICK W. KUHFUSS, Defendant-Appellant.
    Third District
    No. 3—92—0469
    Opinion filed January 26,1993.
    Rehearing denied March 22,1993.

      Thomas & Birner, of Pekin (Donald K. Birner, of counsel), for appellant.
    Erik I. Blanc, State’s Attorney, of Pekin (John X. Breslin and Rita Kennedy Mertel, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE McCUSKEY

delivered the opinion of the court:

The defendant, Frederick W. Kuhfuss, appeals from an order of the circuit court of Tazewell County which denied his motion to dismiss the charges against him based on double jeopardy. The defendant raises two issues on appeal: (1) whether the trial court erred in granting the prosecutor’s motion for a mistrial because there was no manifest necessity for the mistrial; and (2) whether the mistrial was attributable to overreaching by the prosecution thereby precluding the retrial of the defendant.

We affirm because we agree with the trial court’s determination that there was a manifest necessity for a mistrial. Further, we find no prosecutorial overreaching which would bar a retrial of the defendant.

The defendant was charged by indictment with the offenses of armed violence (Ill. Rev. Stat. 1991, ch. 38, par. 33A — 2), aggravated discharge of a firearm (Ill. Rev. Stat. 1991, ch. 38, par. 24 — 1.2(a)(1)) and criminal damage to property (Ill. Rev. Stat. 1991, ch. 38, par. 21 — l(l)(a)). A jury trial began on May 5,1992.

Don Walker testified he went to bed after 10:30 p.m. on May 13, 1991. His wife later woke him and told him that she heard shots. He went to the window and saw flashes of light from a vehicle. His wife ran to the kitchen to call the police. Walker heard about two dozen shots. After the shots stopped, he saw a vehicle leave in the direction of the defendant’s house. Walker was unable to identify the vehicle. Photographs were admitted into evidence which showed damage caused by bullets striking the interior and exterior of the residence. Walker said he lived in rural Mackinaw. The defendant lived approximately one-half mile from him. Walker stated that a legal dispute involving the defendant and him was still pending at the time of the shooting.

Deputy Sheriff Randy Willoby testified that at 11:24 p.m. on May 13, 1991, the police received the call regarding the shooting. Bob Henderson, a deputy sheriff for Tazewell County, testified he went to the Walker residence the night of the shooting. Deputy Henderson later drove to the defendant’s residence which he said was no more than a minute and a half from the Walker home. Henderson said the defendant appeared intoxicated. He noted that a blue Chevrolet Blazer was parked near the defendant’s residence, and a white Corvette was located in the defendant’s garage. Henderson assisted Deputy Willoby with searching the defendant’s Blazer. Inside the Blazer, the officers found a spent .357 cartridge, several spent rifle cartridges, and one live rifle round. Also found in the Blazer was an empty “stripper clip” which holds live rifle rounds. The next day, Henderson assisted several officers in searching the defendant’s home. The officers found two stripper clips containing bullets, a .357 handgun, a loaded semi-automatic rifle and a box of rifle ammunition. Additionally, a sawed-off shotgun was found in the defendant’s machine shed. Officer Roger Smith testified that after the defendant was arrested, he searched him at the jail and found an intact rifle round in the defendant’s sock.

Walter Kryszak testified as an expert witness for the prosecution. He was trained as a firearms and toolmark examiner. Kryszak stated that a slug fragment found on the living room floor of the Walker home was shot from the semi-automatic rifle recovered inside the defendant’s residence “to the exclusion of any other rifle in the world.” Kryszak said this type of semi-automatic rifle could be loaded with the same type of stripper clip found in the defendant’s Blazer.

Four defense witnesses testified they saw the defendant at the Seven Acres bar in Tremont during the evening of May 13, 1991. The witnesses stated the defendant was not intoxicated and was in a good mood. One of the witnesses indicated the defendant was driving his Corvette that evening. Two of the witnesses said the defendant was at the Seven Acres bar until about 10:30 p.m.

Prior to the defense calling its next witness, Amy Pfanz, the prosecutor presented an oral motion in limine. The prosecutor argued that neither Amy Pfanz nor her husband should be allowed to testify they had seen the defendant on May 13, 1991, because their knowledge concerning the date of the incident was the product of hearsay. In support of his argument, the prosecutor presented the court with transcripts of taped statements that Amy Pfanz and her husband, Randy Pfanz, had given the police. The prosecutor indicated he had just received the documents from the police the previous evening. The trial court denied the prosecutor’s motion in limine and ordered him to provide defense counsel with a copy of the statements. The documents apparently included statements that Amy Pfanz had taken a polygraph examination and that she did not pass the test.

Following the motion, Amy Pfanz was called as a witness. She testified during her direct examination that she lived about five or six miles from the Walker residence. At approximately 11:15 p.m. on May 13, 1991, she observed the defendant’s Corvette pull into her driveway and then pull out. Pfanz testified she was sure of the approximate time that evening because of the television program she was watching.

During cross-examination by the prosecutor, Pfanz testified the defendant was a “fairly good” friend of her husband. Amy Pfanz stated that she and her husband first contacted the defendant’s counsel after they learned that the shooting occurred at approximately the same time she observed the defendant’s Corvette in her driveway. Pfanz indicated that she and her husband usually see the defendant about once a week. Pfanz acknowledged that she had talked to Terry McCann of the Morton crime lab. However, she denied telling McCann that she was unsure of what program she was watching on television when she saw the defendant’s Corvette. The prosecutor later asked Pfanz if she had discussed the incident with her husband, the defendant, and defense counsel. She answered, “Yes.” The prosecutor then asked Pfanz when was the last time she saw the defendant. She replied that it was about a week ago. The following exchange then occurred between Pfanz and the prosecutor concerning her conversation with the defendant:

“Q. Did you discuss this case?
A. No.
Q. Did you tell him the police had talked to you?
A. Yes.
Q. Did you tell him what occurred in that conversation?
A. No, not really, not anything specific, just that we had gone and taken a lie detector test.”

The prosecutor immediately asked to approach the bench, and the jury was removed from the courtroom. A recess was held, which was 12 minutes long according to the trial judge’s notes. After the recess, the prosecutor moved for a mistrial. The prosecutor argued that Pfanz’s answer was unresponsive and implied that she had passed the polygraph test. Defense counsel objected to the motion for a mistrial. He argued that the court should instruct the jury to disregard Pfanz’s testimony about the lie detector test. The trial court granted the prosecutor’s motion for a mistrial. The court found that Pfanz’s testimony was clearly volunteered and not responsive to the prosecutor’s question. Also, the court stated that defense counsel should have instructed his witness not to make any mention of the polygraph examination.

Thereafter, the defendant filed a motion to dismiss the charges. The defendant contended that the mistrial should not have been granted and retrial was precluded by double jeopardy principles. During the hearing on the motion to dismiss, defense counsel argued that Pfanz’s testimony about the polygraph test was invited by the prosecutor. Defense counsel argued that the prosecutor caused Pfanz’s response because he previously referred to Terry McCann, the person who had administered the polygraph examination, before he asked Pfanz what she had discussed with the defendant concerning her conversation with the police. The prosecutor claimed he did not intentionally elicit Pfanz’s testimony regarding the polygraph test. The prosecutor stated the intent of his cross-examination about Pfanz’s conversation with the defendant was to show that Pfanz was discussing the case with the defendant and possibly getting instructions from him concerning her testimony. The prosecutor also stated he asked Pfanz questions involving her conversation with McCann because he intended to have McCann called as a rebuttal witness to testify about a statement Pfanz made to McCann which was inconsistent with her trial testimony.

Following these arguments, the trial judge denied the defendant’s motion to dismiss. The judge determined Pfanz’s statement about the lie detector test was unresponsive and created an inference to the jury that she had passed the test. The judge further stated he spent the entire 12-minute recess doing research and considering all the alternatives to granting a mistrial. Additionally, the judge indicated he first considered allowing the prosecutor to bring out the fact that Pfanz had failed the polygraph test. However, he rejected that possibility because the fact she failed the test was clearly inadmissible testimony. The judge next considered instructing the jury to disregard Pfanz’s testimony about the lie detector test. The judge finally concluded this type of jury instruction would not remove the taint of the error because: (1) the strength of the inference that Pfanz had passed the test; (2) the popular perception that lie detector tests are valuable; and (3) the importance of the credibility of this particular witness. Accordingly, the trial judge determined his only viable alternative was to grant the motion for mistrial.

The defendant filed a timely notice of interlocutory appeal pursuant to Rule 604(f) (134 Ill. 2d R. 604(f)). The defendant argues on appeal that the charges against him must be dismissed because the trial court improperly granted the mistrial after jeopardy had attached. We disagree.

The double jeopardy clause of the fifth amendment to the United States Constitution, which is enforceable against the States through the fourteenth amendment, states, “nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb.” (U.S. Const., amends. V, XIV.) Section 10 of article I of the Illinois Constitution provides the same protection. Ill. Const. 1970, art. I, §10.

Illinois law provides that a subsequent prosecution is barred if the defendant was formerly prosecuted for the same offense where the former prosecution “[w]as terminated improperly after the jury was impaneled and sworn.” (Ill. Rev. Stat. 1991, ch. 38, par. 3— 4(a)(3).) In a criminal case where the defendant objects to the granting of a mistrial, the defendant is subject to retrial only where there was a manifest necessity for the mistrial and the mistrial was not made necessary due to judicial or prosecutorial overreaching. See People ex rel. Roberts v. Orenic (1981), 88 Ill. 2d 502, 508, 431 N.E.2d 353, 356-58.

A mistrial, however, should be granted in a criminal case when there is a manifest necessity for the mistrial or the ends of justice would otherwise be defeated. (Illinois v. Somerville (1973), 410 U.S. 458, 461, 35 L. Ed. 2d 425, 429, 93 S. Ct. 1066, 1069; People v. Vilt (1985), 139 Ill. App. 3d 868, 873, 488 N.E.2d 580, 583.) A mistrial is required by manifest necessity when, because of circumstances beyond the control of the parties and the court, it becomes no longer possible to conduct a trial or to reach a fair result based upon the evidence. (People v. Yarbrough (1989), 179 Ill. App. 3d 198, 200, 534 N.E.2d 695, 697.) The granting of a mistrial is within the broad discretion of the trial court, and double jeopardy does not arise unless such discretion was abused. Somerville, 410 U.S. at 462, 35 L. Ed. 2d at 429-30, 93 S. Ct. at 1069; Vilt, 139 Ill. App. 3d at 873, 488 N.E.2d at 583.

Here, the trial court determined a mistrial was necessary because evidence was inadvertently admitted that the defendant’s alibi witness had taken a lie detector test. Based upon our review of the record, we cannot say the trial court’s ruling was an abuse of discretion.

Polygraph evidence is not admissible in the State of Illinois. (People v. Baynes (1981), 88 Ill. 2d 225, 240, 430 N.E.2d 1070, 1077; Peo ple v. McClellan (1991), 216 Ill. App. 3d 1007, 1011, 576 N.E.2d 481, 484; but cf. People v. Melock (1992), 149 Ill. 2d 423, 465, 599 N.E.2d 941, 960 (exception to the rule when evidence used for the limited purpose of determining the reliability of a confession).) The use of polygraph evidence with respect to a defendant in a criminal trial constitutes reversible error. (Baynes, 88 Ill. 2d at 244-45, 430 N.E.2d at 1079; People v. Gard (1992), 236 Ill. App. 3d 1001, 1007, 602 N.E.2d 920, 925.) A different standard applies, however, when the polygraph examination in question was given to a witness rather than to the defendant. Gard, 236 Ill. App. 3d at 1007, 602 N.E.2d at 925.

The court in Gard recently analyzed the case law related to the situation where, as here, the fact a witness had taken a polygraph examination was admitted into evidence, but not the results of the examination. The Gard court concluded the crucial factor in determining whether reversible error occurred in that situation is “the importance of the witness’ testimony and the extent to which the credibility and testimony of that witness reflect on the issue of defendant’s guilt or innocence.” (Gard, 236 Ill. App. 3d at 1010, 602 N.E.2d at 927.) The Gard court noted that in People v. Rutledge (1977), 45 Ill. App. 3d 779, 359 N.E.2d 1233, error was found where an alibi witness was asked if he had been offered a polygraph examination. We held in Rutledge that it was error to ask that question because the testimony of the witness was a significant factor in establishing the defendant’s alibi defense. Accordingly, any question which imported a lack of truthfulness to that witness was particularly prejudicial to the defense. (Rutledge, 45 Ill. App. 3d at 783, 359 N.E.2d at 1236.) We understand that Rutledge only dealt with prejudice to the defendant resulting from the admission of polygraph evidence. However, this court has not forgotten that the State also is entitled to a fair trial.

The trial court found the State was prejudiced by Pfanz’s volunteered testimony regarding the polygraph examination since her testimony implied she had passed the examination. Also, Pfanz testified she saw the defendant driving his Corvette during the same approximate time the shooting took place at the Walker residence. Pfanz was the only witness up to that point in the trial who provided testimony clearly giving the defendant a possible alibi. Her testimony was also significant because she stated the defendant was driving his Corvette. Evidence seized from the defendant’s Blazer would indicate it was the vehicle involved in the shooting instead of the Corvette. Since Pfanz was an alibi witness whose credibility clearly reflected on the issue of the defendant’s guilt or innocence, we cannot say the trial court abused its discretion in determining that her unresponsive testimony caused grave error.

Also, we do agree with the defendant’s contention that a trial court’s decision to grant a mistrial must be made with great caution. A trial judge must first consider all reasonable alternatives before granting a mistrial in a criminal case. Here, we believe the trial judge properly proceeded with great caution and analyzed all reasonable possibilities before granting the motion for the mistrial.

The standard of manifest necessity has not been met and the defendant’s retrial is barred when “the problem giving rise to the mistrial declaration could have been adequately corrected short of aborting the proceeding.” (People v. Lovinger (1985), 130 Ill. App. 3d 105, 112, 473 N.E.2d 980, 985.) A judge must always temper his decision whether to abort the trial by considering the importance to the defendant of being able to conclude his confrontation with society, once and for all, through the verdict of a tribunal which he might believe is favorably disposed to his fate. People v. Ortiz (1992), 151 Ill. 2d 1, 13, 600 N.E.2d 1153, 1158, quoting United States v. Jorn (1971), 400 U.S. 470, 485-86, 27 L. Ed. 2d 543, 557, 91 S. Ct. 547, 557-58.

Here, however, the trial court stated it considered all reasonable alternatives before granting a mistrial. The trial judge specifically found that an instruction to the jury to disregard Pfanz’s testimony could not adequately correct the error because of (1) the strong inference she had passed the test; (2) the popular perception that lie detector tests are valuable; and (3) the importance of the credibility of this alibi witness. We agree with the trial court’s analysis and reasoning.

Our supreme court recognized in Baynes that the very nature of polygraph evidence poses a threat to the integrity of our judicial system because it is not reliable enough to be admitted into evidence and is given undue weight by a jury. (Baynes, 88 Ill. 2d at 244, 430 N.E.2d at 1079; see also People v. Taylor (1984), 101 Ill. 2d 377, 391-92, 462 N.E.2d 478, 485.) Therefore, based solely on this record, we do not find the trial judge abused his discretion when he determined that once Pfanz unresponsively testified she had taken a lie detector test, no alternative short of a mistrial was sufficient to correct the error.

The defendant also contends on appeal that retrial is barred because the mistrial was caused solely by prosecutorial overreaching. The defendant argues the prosecutor created the dilemma because he did not provide defense counsel with the documents showing that Pfanz had taken a lie detector test until minutes before she was called to testify. The defendant further argues the prosecutor invited the error because he asked Pfanz questions regarding her conversation with the polygraph examiner and the police. The defendant opines that the prosecutor’s line of questioning automatically elicited Pfanz’s response concerning the lie detector test. We do not agree with the defendant’s reasoning.

The term “prosecutorial overreaching” contemplates an error which is: (1) intended to provoke a mistrial motion; or (2) motivated by bad faith; or (3) undertaken to harass or prejudice the defendant. (Orenic, 88 Ill. 2d at 510-11, 431 N.E.2d at 358.) Here, the trial judge specifically found Pfanz’s testimony about the lie detector test was not responsive and volunteered. The record supports the judge’s finding. The prosecutor provided a valid reason for asking Pfanz about her conversation with the polygraph examiner. Also, Pfanz’s unresponsive statement about the lie detector test was given in response to a “yes or no” question. The question clearly did not require any response concerning the polygraph examination. It only required a yes or no answer. Finally, it appears the prosecutor provided defense counsel with the necessary documents shortly after he received them from the police. The prosecutor did not withhold this information from the defendant’s counsel. The record does not reflect any impropriety surrounding the prosecutor’s conduct. Accordingly, we agree with the trial court’s conclusion that no prosecutorial overreaching occurred in this case.

In conclusion, we would be remiss if we did not mention that the record shows unequivocally that defense counsel was not to blame for Pfanz’s testimony about the lie detector test. Defense counsel carefully avoided any questions involving the polygraph test during his direct examination of Pfanz.

For the reasons indicated, we conclude the trial court did not abuse its discretion when it found there was a manifest necessity for a mistrial which was not caused by prosecutorial misconduct. Accordingly, we affirm the judgment of the circuit court of Tazewell County and remand the cause for further proceedings.

Affirmed.

SLATER and STOUDER, JJ., concur.


text:
      In re MARRIAGE OF TRACY B. NOLTE, Petitioner-Appellee, and LAURA A. NOLTE, Respondent-Appellant.
    Third District
    No. 3—92—0606
    Opinion filed February 25,1993.

      Matthew T. Gubbins, of Morgan, Regas, Glazar & Gubbins, of Kankakee, for appellant.
    Roger C. Elliott and Paul F. Michel, both of Elliott & McClure, of Momence, for appellee.
   JUSTICE LYTTON

delivered the opinion of the court:

Tracy Nolte (Tracy), the father, filed a petition requesting that an existing child custody judgment be modified to change custody from the mother, Laura Nolte (Laura). Laura filed a counterpetition seeking an increase in child support. The trial judge granted the father’s custody petition and terminated his support obligations. We reverse the circuit court’s decision on the child custody issue, and reverse and remand for further proceedings on the support issue.

On February 3, 1988, Tracy Nolte and Laura Nolte were granted a judgment for dissolution of marriage. Pursuant to a marital settlement agreement, Laura was awarded sole custody of the children, Bryan and Sarah. Tracy was awarded reasonable visitation.

On January 17, 1991, Tracy Nolte filed a petition to modify the judgment, requesting that he be awarded custody of the children. The petition alleged three bases for modification: (a) that the respondent was cohabiting with an unrelated male; (b) that the petitioner had remarried and was better able to provide for the children; and (c) that it was in the best interests of the children that custody be awarded to the petitioner. Laura then filed a petition to modify child support, alleging that there had been a substantial change in the father’s income and in the financial needs of the children.

At the hearing, the petitioner called Laura as an adverse witness. Since her divorce, Laura has lived in three different locations, in addition to a three-month stay at her mother’s home. Laura testified that her present residence consists of a rented house with two large bedrooms upstairs.

Laura has lived with a man named Edward “Mike” Kaminski for two years. For a period of time, Kaminski’s brother lived with the couple.

At their present residence, Laura does not sleep with Kaminski when the children are present. She sleeps in one room with her daughter. Her son sleeps in another room. Kaminski sleeps on the couch downstairs. At a prior residence, Laura and Kaminski slept together.

Since her divorce, Laura held several part-time jobs, averaging 12 to 20 hours per week and paying $4.50 per hour. Between jobs, Laura received unemployment compensation. At the time of the hearing, Laura was unemployed and receiving food stamps, but she had interviewed for a job a few days before. Laura testified as to her monthly expenses and stated that Kaminski shared expenses with her. The children’s insurance has been provided through their father’s employment.

Laura testified that Tracy Nolte is a good father who exercises visitation, but that she wants the children to live with her.

The next witness was petitioner Tracy Nolte. Tracy testified that Laura Nolte and he had two children, Bryan and Sarah. Nolte testified that he was remarried in October of 1990. When exercising visitation on the weekends, he has taken the children fishing, shopping and on other family activities.

Tracy was aware that Laura was living with a man, and Tracy had expressed his displeasure about this. Laura told him to mind his own business.

Nolte testified that Laura was a good mother. He has never heard the children complain about her. However, Tracy testified that he desired custody of the children. He felt that he could better provide for them, as both he and his new wife work.

On cross-examination, Tracy testified that he had never been denied visitation. In claiming that he could better provide for the children, Tracy meant that he could demonstrate employment stability for the children. Laura was receiving money from Kaminski to help meet expenses. Since the children had been insured through Tracy’s employment, this would not be affected by a change in custody. Tracy was not alleging physical or mental abuse. The children were always clean, well fed, and clothed.

Tracy testified that he and his wife rent a two-bedroom house. He also testified as to his financial status, for purposes of the petition to modify support.

The next witness was Tracy’s new wife, Kim Nolte (Kim). Kim testified that she and Tracy rent a two-bedroom house, with a living room, kitchen and dining room. Bryan and Sarah have visited them every other weekend. When they stay over night, the children share a room with separate beds.

Since Tracy works many hours, Kim is responsible for the care of the children, including bathing and eating. Kim also takes the children to football practice, the library, religious classes and church. She testified that she loves the children.

On cross-examination, Kim stated that Tracy works most weekends. Kim testified that Tracy’s schedule allows him one full weekend off every fifth week.

The next witness was Laura Nolte, testifying on her own behalf. Laura resides with her two children and Edward Kaminski. Her residence consists of a rented portion of a big house, with two large bedrooms upstairs, and a large living room, kitchen and bathroom downstairs. Laura and her daughter share one room, and her son has his own room. Kaminski sleeps downstairs on the couch.

On school days, Laura wakes the children up, makes their breakfast, and sees that they get out the door. Bryan takes a bus, but Laura drives Sarah to and from her school. When the children return home, Laura sees that they do their homework, play, have dinner, bathe, and go to bed. Kaminski does not prepare the children’s meals, nor does he attend to their personal hygiene.

Both children participate in school activities. Bryan is in football, and Sarah is in cheerleading. On the weekends, Laura takes them bowling, to the theater, and for walks to the park. Both children like Kaminski and refer to him as “Mike.” Emotionally, Sarah is sentimental and shy, and tends to stay by her mother’s side. Bryan is outgoing. Sarah is a straight A student, while Bryan is an A and B student. Sometimes Kaminski will correct the children, but only Laura disciplines them. Occasionally they are required to stand in the corner and Laura spanks them “every once in a while.” Laura and the children are Catholic, and they attend church as regularly as possible. When the children spend weekends with their father, they attend a different church.

According to Laura, Kaminski has never struck either the children or her. Laura testified that Kaminski is self-employed and provides financial assistance.

On cross-examination Laura stated that, about a month before, Kaminski’s brother had ceased living with them and moved back to Texas. The brother had lived in Illinois for a couple of months while he started a business and got back on his feet.

Laura testified that Kaminski is a dry-wall installer. Kaminski is married, but has been separated from his wife for the past five years. The divorce has never been finalized. For purposes of the petition to modify support, Laura testified as to her financial status.

The trial judge also conducted in camera interviews with the children. Sarah, age eight, stated that she felt sorry for her mom having to deal with the custody fight. She didn’t feel sorry for her dad because he started the fight for custody. Sarah stated that when they visit their father, she and Bryan share a room but have separate beds. Sarah also stated that Kaminski is “good with us.” Sarah testified that, at her mother’s home, she and her mom share a room, Bryan has his own room, and Kaminski sleeps on the couch.

According to Sarah, Kaminski’s brother had slept in a separate bed in Bryan’s room, but the brother was no longer living there. In a prior house, Sarah and Bryan had their own room and her mom and Mike shared a room.

Sarah gets straight A’s in school and doesn’t have a boyfriend. Sarah says that she wants to live in her mom’s house, “I just feel I should be with my mom. *** [M]y dad is the one who walked out on us.”

Bryan, age 11, stated that he knew he was at court because his parents were fighting for custody. His mom had explained that their dad was trying to get custody and that both she and their father love them. Bryan stated that he liked school and that his mother and father took the children to church. If given his choice, Bryan said that he wanted to live with his mom, because “she raised me for all of them years. I just want to keep it like it is.” If he had been living with his father for years, he would want to stay with him. Bryan has a good time with his mother and with his father. He told the judge that he loved both parents. Both Mike Kaminski and Kim Nolte where good to him.

After hearing the evidence, the parties submitted written briefs. The trial judge then issued a written memorandum and order. The judge found that the mother had been living with another man to whom she was not married and that this was contrary to the best interest of the children. The judge also stated that the mother’s residence was insufficient to accommodate the mother, her boyfriend, the children, “and anyone else who may be staying with them on and off, such as her boyfriend’s brother.” The trial judge concluded:

“It would appear to the Court that it would be in the best interest of the children to be placed in the custody of the father where they will be in a more appropriate family unit and with more appropriate accommodations. All in all, it would appear that the father can provide an environment that would be better for the children’s safety, mentally and morally.”

The judge terminated the mother’s custody rights, terminated the father’s support payments, and reserved the issue of the mother making support payments. The judge also ordered that the mother be awarded reasonable visitation but no overnight visitation under her current living conditions.

Laura Nolte then filed a motion requesting that the trial judge reconsider his ruling. The motion alleged that, in the absence of any evidence of adverse effect upon the children, the trial court (a) erred by ruling that the mother’s cohabitation was contrary to the best interest of the children, (b) failed to consider all of the circumstances of the parties, (c) failed to consider the time that each party could spend with the children, (d) failed to give sufficient weight to the wishes of the children, and (e) failed to consider the adverse effects of a change of custody and move to a new community. In the alternative, the motion and supporting affidavits requested a new hearing on the grounds that the mother had ceased cohabiting with Kaminski and that the children had continued to reiterate their desire to live with their mother. The trial judge denied the mother’s requests for reconsideration and a new trial, and the mother filed this appeal.

In this case, the father’s petition to modify custody was brought pursuant to Section 610 of the Illinois Marriage and Dissolution of Marriage Act. (Ill. Rev. Stat. 1989, ch. 40, par. 610.) Section 610(b) provides in pertinent part:

“The court shall not modify a prior custody judgment unless it finds by clear and convincing evidence, upon the basis of facts that have arisen since the prior judgment or that were unknown to the court at the time of entry of the prior judgment, that a change has occurred in the circumstances of the child or his custodian *** and that the modification is necessary to serve the best interest of the child.” (Ill. Rev. Stat. 1989, ch. 40, par. 610(b).)

Section 610(b) reflects an underlying policy favoring finality of child custody judgments and creating a presumption in favor of the present custody so as to promote stability and continuity in the child’s custodial and environmental relationships. (In re Marriage of Fuesting (1992), 228 Ill. App. 3d 339, 344, 591 N.E.2d 960.) Changed conditions alone do not warrant modification in custody without a finding that such changes affect the welfare of the child. (Fuesting, 228 Ill. App. 3d at 344.) Custody cannot be modified unless there is a material change in the circumstances of the child related to the child’s best interests and unless the evidence establishes either that the custodial parent is unfit or that the change in conditions is directly related to the child’s needs. (In re Marriage of Eldert (1987), 158 Ill. App. 3d 798, 805, 511 N.E.2d 945.) Once the trial court has made its determination, that decision will not be disturbed on appeal unless that decision was an abuse of discretion or contrary to the manifest weight of the evidence. Eldert, 158 Ill. App. 3d at 805.

In the case at bar, it appears that the trial judge failed to apply the correct burden of proof. As noted above, section 610(b) of the Illinois Marriage and Dissolution of Marriage Act requires the existence of “clear and convincing evidence” that a change has occurred in the circumstances of the child or his custodian and that modification is necessary to serve the best interest of the child. (Ill. Rev. Stat. 1989, ch. 40, par. 610(b).) The clear and convincing standard requires a high level of certainty. Clear and convincing evidence is considered to be more than a preponderance while not quite approaching the degree of proof necessary to convict a person of a criminal offense. In re Marriage of Wechselberger (1983), 115 Ill. App. 3d 779, 786, 450 N.E.2d 1385.

Nowhere in the record did the judge find the presence of clear and convincing evidence. The judge merely found that the father could provide a “more appropriate family unit” and “more appropriate accommodations.” Thus, it appears that the judge erred by applying the preponderance standard.

Under the facts of this case, however, we need not remand this cause for further proceedings on the custody issue. After examining the record, we find that the petitioning father failed to meet his burden of proof.

First, we find that the father was not entitled to a change of custody on the basis that his ex-wife was cohabiting with a man who was not her husband. While this case was pending in the circuit court, petitioner encouraged the judge to base his decision upon the Illinois Supreme Court’s ruling in Jarrett v. Jarrett (1979), 78 Ill. 2d 337, 400 N.E.2d 421. In Jarrett, our supreme court affirmed the decision of the trial judge to modify custody because of the custodial parent’s cohabitation. The supreme court noted that households consisting of an unmarried man and woman constituted a small percentage of the adult population. Such actions also constituted violations of the fornication statute and prevailing public policy. (Jarrett, 78 Ill. 2d at 345-46.) Additionally, the court noted that the respondent continued to cohabit while the case was on appeal. Jarrett, 78 Ill. 2d at 347.

Initially, the Jarrett decision was seen by some as creating a conclusive presumption that harm to children stemmed from the cohabitation of a custodial parent. (See Jarrett, 78 Ill. 2d at 352 (Goldenhersh, C.J., dissenting, joined by Moran, J.).) Four years later, however, in In re Marriage of Thompson (1983), 96 Ill. 2d 67, 78, 449 N.E.2d 88, cert. denied (1983), 464 U.S. 895, 78 L. Ed. 2d 232, 104 S. Ct. 242, the Illinois Supreme Court held:

“The Jarrett case does not establish a conclusive presumption that, because a custodial parent cohabits with a member of the opposite sex, the child is harmed. No such presumption exists in this State.”

The supreme court noted that it did not condone the custodial father’s conduct, which included forcibly obtaining custody of his son and returning him to Illinois, spending weekends with a woman, and threatening to reveal nude pictures of that woman if she testified against him. Nonetheless, the supreme court held that such evidence was outweighed by evidence that a healthy father-son relationship existed and the son was doing well in his father’s custody. Thompson, 96 Ill. 2d at 79.

On several occasions since Jarrett, Illinois courts of review have affirmed the rights of parents to retain custody despite evidence of cohabitation or other sexual conduct. In Brandt v. Brandt (1981), 99 Ill. App. 3d 1089, 1104, 425 N.E.2d 1251, the appellate court stated that “a decision directing a change of custody must be buttressed on more than the fact that the custodial parent resides with a member of the opposite sex.” Noting that the Illinois Marriage and Dissolution of Marriage Act provides that “[t]he court shall not consider conduct of a present or proposed custodian that does not affect his relationship to the child” (Ill. Rev. Stat. 1989, ch. 40, par. 602(b)), the appellate court stated that it is not the trial court’s function to approve or disapprove the parent’s conduct, but only to determine its effect upon the children. Brandt, 99 Ill. App. 3d at 1105.

In Cooper v. Cooper (1986), 146 Ill. App. 3d 943, 497 N.E.2d 805, the court noted evidence of the custodial mother’s sexual encounters and flirtatious activities. Nonetheless, the court affirmed the mother’s right to custody, stating that although the her activities were immature and not to be condoned, the father had failed to show that these actions affected the child’s relationship with the mother. Moreover, the appellate court stated that, even if the mother’s conduct did affect the child, this was but one factor to be considered by the trial court. Cooper, 146 Ill. App. 3d at 947.

In In re Marriage of Cripe (1989), 183 Ill. App. 3d 37, 538 N.E.2d 1175, the appellate court reversed a modification of custody which was based upon the cohabitation of the custodial mother. In light of the mother’s intent to marry her paramour, the appellate court held, the trial judge’s order changing custody was against the manifest weight of the evidence.

Finally, in In re Marriage of Fuesting (228 Ill. App. 3d at 345), the appellate court reiterated that a custody decision must be based on the totality of the circumstances, and not just the custodial parent’s cohabitation.

Illinois courts require a petitioner seeking a change of custody to show the relevance between a custodial parent’s alleged misconduct and the children’s best interests. When a party offers evidence regarding repeated changes in residence, employment or babysitters, the offering party must be prepared to show that the conduct has adversely affected the child. (In re Marriage of Pease (1982), 106 Ill. App. 3d 617, 620, 435 N.E.2d 1361.) No less should be required from a party seeking to introduce evidence of an ex-spouse’s sexual conduct and personal relationships.

Based upon the record presented, it appears that Laura’s cohabitation with Mike Kaminski has had no adverse impact upon the children. Indeed, Bryan and Sarah appear to be exceptionally well-adjusted. Both receive good grades at school, express love for both parents, and get along with Kim Nolte and Mike Kaminski. Neither child has displayed any behavioral problems. And while Laura Nolte is required to occasionally discipline the children, petitioner testified that he never heard his children complain about their mother.

Both children were given an opportunity to express their preferences during an in camera hearing, and both expressed a desire to stay with their mother. While a child’s preferences need not be deemed as controlling, the preferences of mature children should be given considerable weight when they are based on sound reasoning. (In re Marriage of McCune (1980), 86 Ill. App. 3d 311, 319, 408 N.E.2d 319.) Bryan stated, “she raised me for all of them years. I just want to keep it like it is.” In his own words, Bryan reiterated the policy favoring finality of child custody judgments and the presumption in favor of the present custody, to promote stability and continuity in the child’s custodial and environmental relationships. The petitioner has failed to prove that the custodial mother’s cohabitation required a change of custody.

Second, we find that the father failed to establish by clear and convincing evidence that he was better able to provide for the children. Undoubtedly Tracy is in a superior financial position than Laura. However, the relative affluence of one parent over another, without more, is not a sufficient cause to transfer custody. Carroll v. Carroll (1978), 64 Ill. App. 3d 925, 930, 382 N.E.2d 7.

According to Tracy Nolte, the children’s insurance is unaffected by the custody decision. The record also indicates that the two parties’ residences are similar. Both the mother and the father rent two-bedroom houses. Each residence appears to have a similar number of rooms, though the record reflects that the rooms at Laura’s residence are large.

Moreover, since Tracy holds two jobs, he is not able to spend much time with the children. Indeed, he is able to spend an entire weekend with the children only once every five weeks. When Tracy is at work, responsibility for the care of the children falls upon his new wife. In contrast, Laura Nolte spends much more time and effort in her children’s daily lives. Laura makes sure that the children are ready for school every day, and she drives Sarah to and from her school. She also takes the children to school activities as well as a variety of family activities. Laura also prepares the meals, tends to the children’s personal hygiene, and has sole responsibility for disciplining the children.

Nevertheless, Tracy asserts that he is better able to serve as a role-model of employment stability. While this is certainly an important function of parenting, the father can fulfill this role without a change in custody. Tracy has failed to demonstrate that he was better able to provide for the children.

Third, petitioner failed to prove that modification was in the best interest of the children. As in all child custody cases, the paramount issue in this case is the welfare of the children. (Fuesting, 228 Ill. App. 3d at 344.) After reviewing all of the evidence in this case, however, we find no clear and convincing evidence supporting the father’s contentions.

Tracy’s “best interest of the children” argument, and the trial judge’s findings on this claim, appear to rest on five points: (a) the father was in a better financial position than his ex-wife; (b) the father was a better role model vis-a-vis employment stability; (c) the accommodations at the father’s residence were superior; (d) the mother had changed residences on several occasions; and (e) for a period of time, Mike Kaminski’s brother had lived with Kaminski, Laura and the children. The first three of these contentions have already been addressed. Thus, we turn to petition’s fourth assertion, regarding changes in the custodial parent’s residence.

Continuity in lifestyle and environment is important to the healthy and normal development of children. (Mason v. Mason (1977), 49 Ill. App. 3d 775, 364 N.E.2d 705.) Changes in the custodial parent’s residence and employment may be relevant factors in determining the children’s best interest. These factors are not controlling, however, unless they adversely affect the children. Pease, 106 Ill. App. 3d at 620.

In the case at bar, the record is devoid of any evidence that the mother’s changes in residence adversely affected the children. Although the ill effects of such changes need not manifest themselves before a court can alter the children’s custody (Pease, 106 Ill. App. 3d at 620-21), nothing in the record suggests that the children’s present welfare is seriously endangered. There is also a lack of evidence that the children’s welfare will be endangered in the futüre.

Petitioner’s last point in his “best interest of the children” argument is that Mike Kaminski’s brother also lived in Laura’s residence. It is important to stress that there was no evidence or claim of any impropriety or misconduct involving this brother. Petitioner’s argument is simply that Laura’s residence could not accommodate all five people living there. The record indicates, however, that Kaminski’s brother lived in the house for a period of a few months while he started a business. The brother had moved back to Texas more than a month before the trial judge’s ruling on the custody petition. Permitting a relative to reside in one’s home is not without precedent. (See Thompson, 96 Ill. 2d at 72.) Since this arrangement had already been terminated, and there existed no reason to believe that the situation will recur, a change in custody was not warranted. Accordingly, the trial judge erred in changing custody from Laura Nolte to Tracy Nolte.

It should also be noted that Laura filed a petition to modify child support. In light of the order changing custody, the trial judge did not rule on Laura’s motion. Since we reverse the decision below on the custody issue, the trial court must now rule on the mother’s petition for additional support. As both parties note in their briefs, the mother has ceased her cohabitation and assumed responsibility for costs previously shared with Kaminski. We remand with instructions that the trial judge conduct a new hearing on the support issue only.

Finally, because of the nature of this case and the fact that the children have been erroneously in the custody of their father for an extended time, we hereby direct the clerk of the appellate court to issue the court’s mandate herein instanter and contemporaneously with the filing of this opinion. We so order pursuant to authority granted us by Supreme Court Rule 368(a). 134 Ill. 2d R. 368(a); Cripe, 183 Ill. App. 3d at 45-46.

For the foregoing reasons, the judgment of the circuit court of Kankakee County is reversed on the issue of child custody. The cause is reversed and remanded on the issue of child support for further proceedings consistent with this decision.

Reversed and remanded.

McCUSKEY, P.J., and SLATER, J., concur.