author: PRESIDING JUSTICE JOHNSON

text:
      In re ESTATE OF RAYMOND KIETRYS, Deceased.—(LAWRENCE KIETRYS, Petitioner-Appellant, v. WILLIAM S. KLIETSCH, JR., Ex’r of the Estate of Raymond Kietrys, Respondent-Appellee.)
    First District (4th Division)
    No. 81-28
    Opinion filed January 28, 1982.
    Serpico, Novelle, Dvorak & Navigato, of Chicago (Edwin M. Plaza and Stephen C. Debboli, of counsel), for appellant.
    Richard A. Cowen and Joan E. Emery, both of Chicago (Schuyler, Ballard & Cowen, of counsel), for appellee.
   PRESIDING JUSTICE JOHNSON

delivered the opinion of the court:

Petitioner, Lawrence Kietrys, appeals the grant of summary judgment in a will contest in favor of respondent, William S. Klietsch, Jr., who is the executor of the estate of Raymond Kietrys. The sole issue presented for review is whether there existed a genuine issue of material fact as to the competency of the testator, Raymond Kietrys.

We affirm.

On December 19,1978, Raymond Kietrys died, leaving as his heirs his sister, Irene Barone, his brother, Lawrence Kietrys, and his nephews, Richard, Robert and Raymond Kietrys. A will dated August 27, 1977, provided for the division of all his property between Irene Barone and Lorraine Klietsch. Lorraine had been raised as a daughter by Kietrys’ parents, but she had not been formally adopted. On May 30, 1979, Lawrence Kietrys filed a petition for contest of will alleging that decedent was of unsound mind and memory, and that decedent had suffered from chronic alcoholism and did not have the mental capacity to know the nature or extent of his property, the natural objects of his bounty and his relations with them, or the disposition he wished to make of his property. Lawrence also alleged that Lorraine and William S. Klietsch, Jr., the executor, unduly influenced Raymond in making his will. Respondent’s motion for summary judgment was granted on December 3, 1980, and petitioner appealed.

Affidavits submitted by respondent Klietsch established the following.

John W. Dubbs III is the attorney who drafted the will of Raymond Kietrys and witnessed its execution on August 27, 1977. In June or July 1977, Raymond telephoned Dubbs and said that he wished to change the executor of his will. Raymond had been an executor for an estate and thought that being an executor was not too difficult although time consuming. He saw no reason why Pioneer Bank should collect a large fee for being executor when William Klietsch, Jr., could handle the estate. Klietsch is the son of Lorraine Klietsch, a beneficiary under the will.

In July 1977, Dubbs met with Raymond to discuss the will. Raymond said that he had not named his brother, Lawrence, as a beneficiary because Lawrence had enough money. Raymond treated both Irene Barone and Lorraine Klietsch as sisters and thought they needed the money more than Lawrence. He saw no reason to leave anything to his nephews, sons of a deceased brother, because he had not seen them for several years. Later, Dubbs rewrote the will with basically the same provisions as an earlier will dated May 12, 1973, but naming a different executor.

On August 27, 1977, Raymond met John Dubbs III at his father’s office, where they reviewed the provisions of the will. Kietrys acknowledged the will and signed it in the presence of four witnesses: John Dubbs III, John Dubbs, Jr., Patrick J. Caliban, all attorneys, and Dean J. Polales, a law student. There was general conversation involving Raymond before and after the will was signed.

According to the individual affidavits of these witnesses, Raymond was neatly dressed and groomed. His posture was erect and he walked and moved without assistance in a coordinated manner. His statements were clear, logical and relevant to the topics discussed. There was no odor of alcohol about Raymond, and he was not intoxicated. In the opinion of all the witnesses, Raymond was of sound mind and memory when he signed the will.

Respondent submitted affidavits from Raymond’s co-workers. John Januck, Harold Sewick, John Jarosz and Edward Carfora worked at Fruehauf Corporation where Raymond had been continuously employed as a mechanic for 27 years. They had either daily or weekly contact with Raymond. In discussions with him, he was always rational, clear and logical. Januck, in his role as service manager, observed Raymond almost every day from 1970 through 1978 and spoke with him several times each week. He described Raymond as a good, steady worker who received regular raises. In the opinion of all these co-workers, Raymond was of sound mind and memory whenever they had contact with him.

Respondent submitted affidavits which established Raymond’s business dealings.

Robert H. Mohs became Raymond’s stockbroker in November 1977. He described his business relationship with Raymond. In Mohs’ opinion, Raymond demonstrated an average degree of sophistication for an investor. Raymond even understood options trading, which some investors do not understand because it is more technical and involves a more sophisticated analysis.

Manuel Solotke, an attorney, represented Raymond on real estate matters from April 1975 to October 1977. He stated that Raymond was always able to discuss business matters in a rational and coherent manner.

Gerald L. Wadleigh, who bought real estate on contract from Raymond, had contacts with him from 1969 through October 1977 and always found him coherent, alert and logical. Wadleigh believed that Raymond was completely capable of managing his business affairs.

Chester Sulek, pastor of Our Lady of Grace Church, stated that Kietrys was a regular contributor and listed Raymond’s annual contributions to the church from 1969 to 1978.

Anne E. Wucki, secretary of the church, had 8 to 10 contacts with Raymond. He contacted her to book Masses for his deceased wife for 6 to 7 years before his death. His letters were handwritten, clearly legible and logical, and the correct fee for the Mass was enclosed. Whenever Wucki saw Raymond he was neatly dressed and well-groomed. She never detected an odor of alcohol on his person.

In the opinion of all these affiants, Raymond was of sound mind and memory on every occasion when they had dealings with him.

Margaret K. Gallagher knew Raymond because Lorraine Klietsch is married to Margaret’s brother, William. Since 1970, Gallagher had contact with Raymond six or seven times a year at family gatherings. Whenever she spoke with him, his speech was coherent and clear, and his statements were logical. She never saw him intoxicated. In her opinion, Raymond was of sound mind and memory whenever she saw him.

Affidavits submitted by the petitioner, Lawrence Kietrys, and depositions established the following.

Steven Granat is a foreman at Fruehauf. In 1970 or 1971, he became aware of Raymond’s drinking problem. Many times Raymond appeared confused and disoriented at work and often had to be sent home. He suffered minor job injuries as a result of his intoxication and disorientation. Raymond was assigned to nondangerous jobs so that he could work in relative safety. Granat warned Kietrys about drinking on the job. Raymond would go to his locker regularly and return smelling of alcohol. In Granat’s opinion, Raymond was an alcoholic whose condition grew progressively worse and, as a result, Raymond was not in control of his mental faculties and was not of sound mind and memory. However, at a deposition, Granat could not say with any degree of certainty whether Raymond was of sound mind and memory on August 27,1977.

Stanley Mrowczynski had known Raymond for 43 years at the time of his death. When Raymond’s wife died, Mrowczynski noticed a change in Raymond’s personality. On almost every occasion after the wife’s death, Raymond was intoxicated when he visited Mrowczynski. Raymond would talk about the old days and at times his speech was rambling and slurred and very often incoherent. In Mrowczynski’s opinion, Raymond was not of sound mind and memory because of his alcoholism. At a deposition, Mrowczynski stated that in 1977, Raymond was of sound mind 80 percent of the time, but he had no opinion as to whether Raymond was of sound mind in August 1977.

Irene Rarone is Raymond’s sister. They lived in nearby apartments in the same building. After Raymond’s wife died, Raymond ate with Irene every day and Irene was his housekeeper. He paid her $20 per week. Irene stated that for 5 years before his death, Raymond would take off sick because he had a drinking problem. He would drink a "quart of whiskey a day. She did not know that Raymond had a will until after he died. When she found and read the will in his apartment, she thought that it was unusual that her brother gave half of his property to Lorraine and nothing to Lawrence because Lorraine had done nothing for Raymond. In Irene’s opinion, Raymond was of sound mind and body most of the time but not at all times. She had no recollection of where she was on August 27,1977. She might have been on vacation. She could not state whether or not her brother, Raymond, was of sound mind and memory on August 27, 1977.

Dr. John E. Meyenberg treated Raymond between November 1972 and his death in December 1978, but not at any time during 1977. In an affidavit, Meyenberg stated that Raymond had an alcoholic addiction problem which most certainly altered his thinking process. However, in his deposition, Meyenberg stated that on every occasion when he treated Raymond he was of the opinion that Raymond was of sound mind and memory.

Petitioner, Lawrence Kietrys, contends there existed a genuine issue of material fact as to the competency of Raymond Kietrys at the time he executed his will and, therefore, the trial court erred in granting respondent’s motion for summary judgment.

Summary judgment is appropriate “if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (El. Rev. Stat. 1979, ch. 110, par. 57(3).) The purpose of summary judgment is to determine if any triable factual issues exist. (Kramer v. McDonald’s System, Inc. (1978), 61 Ill. App. 3d 947, 960, 378 N.E.2d 522, 533.) In ruling on a motion for summary judgment, the trial court should construe the pleadings, affidavits, exhibits and depositions most strictly against the moving party and most liberally in favor of the opponent. (Shockley v. Ryder Truck Rental, Inc. (1979), 74 Ill. App. 3d 89, 93-94, 392 N.E.2d 675, 677-78.) Inferences may be drawn from the facts which are not in dispute and, if fair-minded persons could draw different inferences from these facts, then a triable issue exists. (Lumbermens Mutual Casualty Co. v. Poths (1968), 104 Ill. App. 2d 80, 88, 243 N.E.2d 40, 45.) The right to a summary judgment must be clear and free from doubt. Because it is a drastic method, summary judgment must not be used to preempt the right to a trial by jury or the right to fully present the factual basis for a case where a material dispute may exist. Welch v. Chicago Tribune Co. (1975), 34 Ill. App. 3d 1046, 1050, 340 N.E.2d 539, 542.

Petitioner contends that Raymond Kietrys lacked testamentary capacity. A person has testamentary capacity when he has sufficient mental ability to know and remember who are the natural objects of his bounty, to comprehend the kind and character of his property and to make a disposition of the property according to some plan formed in his mind. (Kelley v. First State Bank (1980), 81 Ill. App. 3d 402, 413, 401 N.E.2d 247, 255.) The party asserting lack of testamentary capacity has the burden of proof since the law presumes every man to be sane. (Shevlin v. Jackson (1955), 5 Ill. 2d 43, 47, 124 N.E.2d 895, 897.) Proof of incapacity must relate to the time at or near the making of the will. (Shevlin v. Jackson (1955), 5 Ill. 2d 43, 47.) Evidence of mental condition at other times, unless it fairly tends to show the condition of the testator at the time the will was actually executed, is wholly inconsequential. (Shevlin v. Jackson (1955), 5 Ill. 2d 43, 47.) A^ter laying a proper foundation, a witness may give an opinion, as to the soundness or unsoundness of the mind of the testator. Powell v. Weld (1951), 410 Ill. 198, 202, 101 N.E.2d 581, 583.

Respondent submitted affidavits of four persons who witnessed the execution of the will. They all had an opportunity to observe and talk to the testator, Raymond Kietrys, and they all stated that in their opinion he was of sound mind and memory on August 27, 1977. Their testimony is not contradicted by affidavits and depositions submitted by the petitioner. Granat, a co-worker, Mrowczynski, a friend, Barone, a sister, and Meyenberg, a treating physician, were all of the opinion that Raymond was an alcoholic. The most that petitioner has shown is that Raymond Kietrys drank alcoholic beverages, sometimes to excess. But proof of alcohol consumption is not proof of testamentary incapacity. Shevlin v. Jackson (1955), 5 Ill. 2d 43, 47.

Furthermore, the evidence shows that Raymond was able to transact ordinary business. Where a man has sufficient mental capacity to transact ordinary business and act rationally in the ordinary affairs of life, he has sufficient mental capacity to dispose of his property by will. (Shevlin v. Jackson (1955), 5 Ill. 2d 43, 47-48, 124 N.E.2d 895, 897.) Mohs, Raymond’s stockbroker, described the testator as an average investor who understood the more sophisticated options trading. Solotke, an attorney who handled real estate for Raymond, said that he was always able to discuss business matters rationally and coherently. Wadleigh, who purchased real estate from Raymond, stated that Raymond was capable of managing his business affairs.

The evidence submitted by petitioner does not even establish that Raymond lacked testamentary capacity at or near the time he executed his will on August 27, 1977. Granat, Mrowczynski and Barone had no opinion as to whether Raymond was of sound mind and memory on August 27, 1977. Mrowczynski thought that Raymond was competent 80 percent of the time in 1977, and Barone thought that he was competent most of the time. Meyenberg stated that on every occasion when he treated Raymond, the latter was of sound mind and memory. Meyenberg did not treat Raymond anytime during 1977.

Finally, petitioner cites Catt v. Robins (1922), 305 Ill. 76, 137 N.E. 101, for the proposition that testamentary capacity is an issue of fact for the jury to decide. That case is not on point. In Caff, there was conflicting testimony as to whether the testator was competent. In the case at bar, there is no conflicting testimony as to whether the testator was competent when he executed his will.

We hold that the trial court properly granted the motion for summary judgment where there existed no genuine issue as to the testamentary capacity of Raymond Kietrys.

For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.

Affirmed.

LINN and ROMITI, JJ., concur.


source: Caselaw Access Project

author: JUSTICE LINN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ERIC PETTIS, Defendant-Appellant.
    First District (4th Division)
    No. 81-191
    Opinion filed January 28, 1982.
    James J. Doherty, Public Defender, of Chicago (Thomas W. Murphy, Assistant Public Defender, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Kevin Sweeney, and Sheila M. King, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LINN

delivered the opinion of the court:

The defendant, Eric Pettis, along with Eric Smith, was charged with the offense of criminal trespass to a vehicle. Thereafter, a bench trial for defendant and a preliminary hearing for Smith were held simultaneously. Defendant was then found guilty and was sentenced to a probationary term of one year with the first 21 days to be spent in custody, that time considered already served. Defendant appeals, contending that the trial court committed reversible error when it allowed the arresting police officer to testify as to a statement, made by Eric Smith, which implicated defendant.

The following facts were adduced at trial: Police Officer James Spratte testified that, at approximately 2:30 a.m. on October 9, 1980, he received a radio message which indicated that a driver of a vehicle, bearing license plate BY 6141, was armed. Upon checking that license plate number with the police computer, Officer Spratte determined that the vehicle in question had been stolen three days previously. In response to this information, the police officer began to tour the area in search of the vehicle. Officer Spratte then observed the vehicle parked at the curb in front of 6423 South Wood Street in Chicago. He then set up surveillance of that automobile from a distance of approximately Bz blocks away. Several minutes later, he observed the tail lights of the car go on and the vehicle then pulled away from the curb.

After calling for an assist car, Officer Spratte pursued the stolen vehicle and stopped it at 1900 West 61st Street. According to Officer Spratte, defendant and Eric Smith were the occupants of that vehicle, with Smith being the driver. Defendant and Smith were then arrested and taken to the police station for interrogation. At that location, defendant and Smith were advised of their Miranda rights. Thereafter, Smith indicated to Officer Spratte that he had stolen the car a few days before and that defendant was aware of this fact. Spratte further testified that, when he stopped the aforesaid vehicle, the keys were in the ignition and there were no scratch marks or damage to the steering wheel.

On cross-examination, Spratte stated that Eric Smith informed him only that defendant knew the car was stolen. Spratte admitted that he could not remember if Smith ever said that he had told defendant the vehicle was stolen. At this point, defense counsel objected to the admission of such statements on the basis that Smith’s statements were hearsay. The trial court denied defense counsel’s objection.

James Elam, the owner of the automobile in question, testified that his vehicle was stolen on or about October 6,1980. At the time the car was taken, Mr. Elam stated that there were two suits, an overcoat and some groceries in the automobile.

Defendant testified in his own behalf and stated that he was in the vehicle in question on October 9, 1980 with Eric Smith when it was stopped by the police. According to defendant, Smith informed him that the vehicle belonged to Smith’s sister. Defendant stated he first learned that the car had been stolen when he was taken to the police station by Officer Spratte. On cross-examination, defendant stated that, since he had not observed Smith in a car previously, he had asked Smith whether the car was stolen. However, defendant then stated that he had no knowledge of the car’s status when he got into it on the date in question.

Rodney Johnson also testified for defendant and stated that he had seen Eric Smith drive the stolen vehicle and that Smith had informed him that the car belonged to his sister.

Section 21 — 2 of the Illinois Criminal Code of 1961 defines the offense of criminal trespass to a vehicle. It states:

“Whoever knowingly and without authority enters any vehicle, aircraft or watercraft or any part thereof of another without his consent * * (Ill. Rev. Stat. 1979, ch. 38, par. 21 — 2.)

Knowledge is an essential element of this criminal offense, and therefore, the State is required to prove that the defendant knowingly entered the vehicle of another without his consent. People v. Bunch (1976), 36 Ill. App. 3d 235, 343 N.E.2d 575.

In Bruton v. United States (1968), 391 U.S. 123, 135-37, 20 L. Ed. 2d 476,484-86,88 S. Ct. 1620, 1627-28, the Supreme Court held that, in a joint trial, the introduction of a co-defendant’s out-of-court confession, which implicates the defendant, violates the latter’s right to confrontation, where the co-defendant making the statement cannot be subjected to cross-examination at trial. Defendant contends that the introduction of Eric Smith’s statement violated his sixth amendment right to confrontation, as outlined in Bruton, since Smith failed to testify at defendant’s trial. The State, citing People v. McNeal (1977), 56 Ill. App. 3d 132, 136-37, 371 N.E.2d 926, argues that a violation of rights under the Bruton rule was not designed for and has not ever been applied to a bench trial as was the proceeding in the present matter.

The decision in Bruton concerned a defendant’s right to confront the witnesses against him and to subject those witnesses to cross-examination to test the veracity of their statements. In determining whether there has been a violation of that right, it would appear to be irrelevant that the trial is one before a jury or before a judge. A close reading of People v. McNeal (1977), 56 Ill. App. 3d 132, 371 N.E.2d 926, indicates it stands for the proposition that in a bench trial it can usually be presumed that no prejudice has occurred to a defendant who has been implicated by a co-defendant’s confession because, unlike a jury, a judge, being trained in the law, will refuse to consider the statement made by the co-defendant in determining the defendant’s guilt. Thus, McNeal does not stand for the proposition that no violation of defendant’s right to confrontation can occur in a bench trial, but only stands for the proposition that defendant’s inability to cross-examine the co-defendant, concerning the co-defendant’s confession implicating the defendant, is not usually prejudicial because it will be presumed the judge, as trier of fact, has refused to consider the damaging confession in determining defendant’s guilt.

In the present case, the presumption of no prejudice to defendant by the admission of the co-defendant’s statement has been rebutted. The State had to prove defendant “knowingly” entered the vehicle of another without the other’s consent. The only evidence the State used to prove this was the co-defendant’s statement that defendant knew the vehicle was stolen. If we were to presume that the trial court properly refused to consider this evidence against defendant, then it would follow that the trial court would have entered a not guilty finding for defendant because of a lack of evidence to prove the “knowledge” element of the offense. To find defendant guilty, the trial court had to rely on the co-defendant’s statement which was not admissible to prove defendant’s guilt. Thus, defendant’s conviction and sentence for criminal trespass to a vehicle must be reversed.

Reversed.

JIGANTI and ROMITI, JJ., concur.


author: JUSTICE MEJDA

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. OSCAR GREEN et al., Defendants-Appellants.
    First District ( 5th Division)
    No. 77-300
    Opinion filed January 29, 1982.

      James J. Doherty, Public Defender, of Chicago (James L. Rubens, Assistant Public Defender, of counsel), for appellants.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Dean C. Morask, and Gregory G. Thiess, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE MEJDA

delivered the opinion of the court:

Defendants were both charged with robbery (Ill. Rev. Stat. 1975, ch. 38, par. 18 — 1). After a bench trial, each was convicted and sentenced to one to three years in the Illinois Department of Corrections. Defendants appeal.

The issues raised on appeal are: (1) whether defendant Robinson was erroneously prosecuted as an adult; (2) whether the identifications of both defendants were sufficient to support their convictions; and (3) whether the trial court erred in sentencing defendant Robinson to the Adult Division of the Illinois Department of Corrections.

During the evening of Wednesday, March 26,1975, two “customers” at a Jewel Food Store in Chicago went through a check-out line to pay for a small purchase. One of the two hit the cashier on the side of her head and the other grabbed some money from the register. Both “customers” then fled. The victim described one of her assailants as being a 5'9", 150 lb. black man, wearing a black knit stocking cap and an Afro hairstyle. She described the other as tall, thin and black wearing a light tan, wide-brimmed hat.

On the evening of May 14,1975, the victim was again working at the Jewel store when she saw her alleged assailants in the store. The two paid for a small purchase at another cashier’s station and exited. The victim removed her money from her cash drawer, brought it to the service desk, and there told another store employee that the two men who had just exited were the two who had robbed her on March 26, 1975. Shortly thereafter, a Jewel security guard brought the defendants Oscar Green and Jerry Robinson into the store. The police were called and the victim identified defendants as the March 26, 1975, robbers. Later that same evening at the police station the victim again identified the defendants as her assailants.

During the trial defendant Robinson denied being in the Jewel store on the night of the robbery. He testified that he worked until 7:30 p.m. that evening and then visited his girlfriend. He stated that he arrived home between 10:30 p.m. and 11 p.m. During his testimony Robinson twice stated that on the night of the occurrence he was 16 years old and further that he was born April 12, 1958.

Defendant Green testified that he was neither with Robinson nor at the Jewel store on the date of the robbery but was at home with his mother between 7 and 10 p.m. that evening. Green’s mother testified that he was not allowed to go out of the house on weeknights.

The court found defendants guilty. At the sentencing hearing defendants’ counsel informed the court that it appeared that at the time the offense was committed Robinson was 16 years old. Defense counsel requested more time to ascertain Robinson’s correct age and research the pertinent statute. The court continued the hearing for a few days to allow defense counsel to pursue the matter. The sentencing hearing was again commenced several days later. Defense counsel informed the court that he had requested each defendant’s mother to bring the birth certificate of her son to the courtroom. The court granted defense counsel time to discuss the matter of defendants’ ages with their family members. After defense counsel had an opportunity to talk with his witnesses, the court inquired of him, “What is your pleasure?” to which defense counsel responded that he wished to proceed with the sentencing hearing. The court then entertained and denied defense counsel’s oral motion in arrest of judgment and new trial. After hearing evidence in aggravation and mitigation, the court sentenced each defendant to not less than one year and not more than three years. Defendants appeal.

Opinion

Defendant Robinson first contends that it was error for the State to prosecute him as an adult when he was 16 years of age at the time he allegedly committed the offense.

The procedure governing the initiation of criminal prosecution of a juvenile defendant is set forth in section 2 — 7 of the Juvenile Court Act (Ill. Rev. Stat. 1979, ch. 37, par. 702 — 7). That section prohibits the criminal prosecution of a minor under 17 years of age at the time of the alleged offense, unless the juvenile has been brought before the juvenile court upon petition by the State’s Attorney (People v. Rahn (1974), 59 Ill. 2d 302, 319 N.E.2d 787) and the court enters an order permitting such prosecution (Ill. Rev. Stat. 1979, ch. 37, par. 702 — 7(3)). Whether a person is tried in juvenile or criminal court is a matter of procedure (People v. Woods (1979), 78 Ill. App. 3d 431, 396 N.E.2d 1204), and a defendant may waive the right to be tried in a juvenile court. (People v. Smith (1974), 59 Ill. 2d 236, 319 N.E.2d 760.) Such a waiver may occur if the defendant waives an indictment and pleads guilty in criminal court on the advice of counsel (People v. Shaw (1972), 3 Ill. App. 3d 1096, 279 N.E.2d 729), misrepresents himself as being an adult during testimony (People v. Smith), or fails to make age an issue. (People v. Nichols (1978), 60 Ill. App. 3d 919, 377 N.E.2d 815; People v. Washington (1966), 81 Ill. App. 2d 90, 225 N.E.2d 472, affd (1968), 41 Ill. 2d 16, 241 N.E.2d 425.) We agree with defendant Robinson that if he indeed was 16 years of age at the time of the offense it was error to initiate criminal proceedings against him without first petitioning the juvenile court. However, in this case defendant never asserted his right to juvenile proceedings to the prosecutor or to the court before trial. Accordingly, he has waived any objection to the initiation of criminal proceedings against him. People v. Woods (1979), 78 Ill. App. 3d 431, 396 N.E.2d 1204.

Defendant Robinson next asserts that the trial court erred by failing to transfer the cause sua sponte to the juvenile court when it heard his unrebutted testimony that he was 16 years of age on the date of the offense. The State contends that defendant Robinson waived his right to be tried as a juvenile by failing to raise age as an issue.

We agree with the State’s contention. “Raising age as an issue” means something more than testifying to one’s age at trial. Although the term has not specifically been defined in this context, a close analysis of the cases considering this issue shows that the term implies the assertion by the juvenile defendant of his right to juvenile proceedings. (People v. G. V. (1980), 83 Ill. App. 3d 828,404 N.E.2d 374 (issue raised by motion to vacate judgment); People v. Greve (1980), 83 Ill. App. 3d 435, 403 N.E.2d 1230 (issue raised by motion to transfer proceedings); People v. Woods (1979), 78 Ill. App. 3d 431, 396 N.E.2d 1204 (issue raised by motion to dismiss the indictment); People v. Nichols (1978), 60 Ill. App. 3d 919, 377 N.E.2d 815 (issue raised by motion for a mistrial or alternatively for a dismissal of the indictment); People v. Gooden (1977), 56 Ill. App. 3d 408, 371 N.E.2d 1089 (issue raised by motion to dismiss the indictment); People v. Smith (1974), 59 Ill. 2d 236, 319 N.E.2d 760 (issue raised by defense counsel’s request that the trial court vacate its judgment and transfer cause to the juvenile court); see also In re Greene (1979), 76 Ill. 2d 204, 390 N.E.2d 884.) A review of the record clearly shows that defendant Robinson’s age was not elicited by his defense counsel for purposes of challenging the continuation of criminal proceedings against him. Defense counsel made no motion at any time during trial, either before or after defendant Robinson’s testimony, to have the proceedings continued, terminated or transferred. The testimony was elicited only for purposes of identification and did not thereby “raise age as an issue.”

Defendant Robinson cites the case of People v. Smith (1974), 59 Ill. 2d 236, 319 N.E.2d 760, for the proposition that it was incumbent upon the trial court to transfer the case sua sponte upon hearing defendant Robinson testify he was 16 years of age on the date of the offense. However, in Smith the cause was transferred not upon the court’s motion but upon that of defense counsel and only after defendant’s statement as to his age was corroborated by his mother and documentary evidence. In re Greene (1979), 76 Ill. 2d 204, 390 N.E.2d 884, is more instructive here and further supports the State’s contention that defendant waived his right to juvenile proceedings. In Greene, minors, adjudicated delinquents and found by the juvenile court guilty of various offenses under the criminal law, appealed the propriety of the juvenile proceedings on the basis that the State failed to prove that each offender had committed the offenses prior to his 17th birthday. Before appeal the minors had never challenged the authority of the juvenile court to proceed. The supreme court rejected this argument stating that unless an individual specifically challenges the authority of the court to proceed against him as a juvenile, he is deemed to have consented to the juvenile proceedings and has waived any objections to the court’s authority to apply juvenile procedures and to impose juvenile sanctions upon him. (76 Ill. 2d 204, 212, 390 N.E.2d 884.) Similarly, by failing to specifically challenge the authority of the trial court to proceed against him, defendant Robinson is deemed to have waived any objections to the trial court’s authority to apply criminal proceedings against him.

Interestingly, we note that defendant does not assert that the trial court erred in failing to transfer the cause subsequent to trial when defense counsel suggested to the trial court that if defendant Robinson was 16 years of age on the date of the offense the cause would be better transferred to the juvenile court. Indeed, defendant Robinson could not so assert, for the record clearly shows that although given the opportunity to confirm defendant Robinson’s age by the trial court, defense counsel produced no birth certificate. Furthermore, although defendant’s mother was present in the courtroom at the reconvened sentencing hearing, defense counsel declined to call her to corroborate defendant’s testimony after speaking with her privately. After consulting with her, defense counsel abandoned any objection to the criminal proceedings and specifically requested that the reconvened sentencing hearing continue.

Under the Juvenile Court Act a minor with the consent of counsel is vested with unqualified discretion to elect prosecution under the criminal law. (Ill. Rev. Stat. 1979, ch. 37, par. 702 — 7(5); People v. Sprinkle (1974), 56 Ill. 2d 257, 307 N.E.2d 161, cert, denied (1974), 417 U.S. 935, 41 L. Ed. 2d 239, 94 S. Ct. 2650; People v. Thomas (1976), 34 Ill. App. 3d 1002, 341 N.E.2d 178.) The supreme court in People v. Jiles (1969), 43 Ill. 2d 145, 149, 251 N.E.2d 529, 531, stated:

“Under the Illinois Juvenile Court Act the juvenile and his attorney have an uncontrolled discretion to choose to be proceeded against in the criminal court. They may make that choice without regard to any considerations relating to the public interest, or even to the ultimate best interest of the juvenile. No judge has any authority to interfere with that choice.”

While defendant Robinson did not comply with the procedural steps outlined in the Juvenile Court Act for electing criminal prosecution (Ill. Rev. Stat. 1979, ch. 37, par. 702 — 7(5)), he effectively made such an election by failing to assert his right to juvenile proceedings. Under these circumstances we hold that it was not incumbent on the trial court to transfer the cause sua sponte upon hearing defendant Robinson’s testimony that he was 16 years of age at the time of the offense.

Defendants Robinson and Green next contend that they were not proved guilty beyond a reasonable doubt because of the insufficiency of the identification evidence against them.

The positive identification by a single witness who has ample opportunity for observation is sufficient to support a conviction. (People v. Clarke (1971), 50 Ill. 2d 104, 277 N.E.2d 866.) Correlatively, the conviction of a defendant which rests upon a doubtful, uncertain or vague identification which does not produce an abiding conviction of guilt will be reversed. (People v. Cullotta (1965), 32 Ill. 2d 502, 207 N.E.2d 444.) However, in a bench trial it is within the province of the trial court to determine the credibility and weight of the testimony, to resolve the inconsistencies and conflicts, and to render its decision accordingly. A court of review will not substitute its judgment on these matters unless the proof is so unsatisfactory that a reasonable doubt of guilt appears. (People v. Berland (1978), 74 Ill. 2d 286, 385 N.E.2d 649, cert, denied (1979), 444 U.S. 833, 62 L. Ed. 2d 42,100 S. Ct. 63.) In the instant case the victim had a clear view of the robbers on the night of the crime. They faced her in good lighting and one of them spoke with her. The robbers went through her line not once but twice to make two small, separate purchases. Business was slow that evening so that there was nothing to distract the victim’s attention from her customers. Six weeks later when the defendants entered the store, the victim unhesitatingly identified them as the robbers. She was so certain that they were her assailants that on her own initiative she removed the money from her drawer and brought it over to the service desk because she was “scared [she] was going to get robbed again.” Furthermore, the victim’s testimony was corroborated by the testimony of the other cashier working on the evening of the robbery who also positively identified the defendants as the robbers.

Factors which may be considered in evaluating identification testimony include the opportunity of the witness to view the defendant at the time of the crime, the witness’ degree of attention, the accuracy of her prior description of the defendant, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation. (People v. McKinley (1977), 69 Ill. 2d 145, 370 N.E.2d 1040, cert, denied (1978), 435 U.S. 975, 56 L. Ed. 2d 69, 98 S. Ct. 1623.) In light of these factors we do not find the identification testimony here so unsatisfactory as to raise a reasonable doubt of guilt. The trial court specifically found that the victim’s testimony was truthful, convincing and corroborated by other testimony. We see no reason to disturb that finding.

Defendant Robinson lastly contends that the trial court erred in sentencing him to the Adult Division of the Illinois Department of Corrections when he was allegedly 16 years old on the date of the offense. The applicable sentencing statute, section 5 — 8—6(c) of the Unified Code of Corrections, reads, “All offenders under 17 years of age sentenced to imprisonment shall be committed to the Juvenile Division of the Department of Corrections ° * (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 8—6(c).) Defendant’s argument is foreclosed, however, by People v. Taylor (1979), 76 Ill. 2d 289, 391 N.E.2d 366. There the supreme court determined that under section 5 — 8—6(c) it is the offender’s age when sentenced and not his age at the time of the occurrence which is the relevant criterion. 76 Ill. 2d 289, 310, 391 N.E.2d 366, 375; People v. Costello (1981), 95 Ill. App. 3d 680, 420 N.E.2d 592.

Accordingly, for the reasons cited herein, the judgment of the trial court is affirmed.

Affirmed.

LORENZ and WILSON, JJ., concur.


author: PRESIDING JUSTICE SULLIVAN

text:
    GETTY SYNTHETIC FUELS, INC., Petitioner, v. THE POLLUTION CONTROL BOARD et al., Respondents.
    First District (5th Division)
    No. 81-1071
    Opinion filed January 29, 1982.

      Louis M. Rundió, Jr., of Chicago (McDermott, Will & Emery, of counsel), for petitioner.
    Tyrone C. Fahner, Attorney General, of Chicago (William J. Barzano, Jr., Assistant Attorney General, of counsel), for respondents.
   PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court:

Petitioner (Getty) appeals the finding of the Illinois Pollution Control Board (Board) that the proper reference point for applying the emission limitation of Rule 205(f) (1) (C) of the Illinois Pollution Control Board Rules and Regulations is the emission discharge from the plant vent of its methane recovery facility rather than that naturally emitted from the landfill on which it operates its facility.

On April 7, 1980, Getty submitted to the Illinois Environmental Protection Agency (IPEA) an application for a permit to construct a methane recovery facility at a waste disposal site know as the CID Landfill. The facility was designed to extract each 5 million cubic feet of landfill gas generated by the decomposition of solid waste. The process includes a gas gathering and transporting system consisting of a network of recovery wells bored into the landfill and a series of underground pipes which connect the wells to a processing plant. The landfill gas contains a high percentage of methane which is purified by removing various unwanted components. The product is a pipeline quality gas suitable for industrial and residential use. In the methane recovery process approximately 220 pounds per hour of nonmethane hydrocarbons (heavy hydrocarbons) are separated out of the gas, of which about 90% is disposed of elsewhere or returned to the landfill, and the remaining 20 pounds per hour are emitted into the atmosphere. The Getty permit application indicated that the heavy hydrocarbons would be removed through a condensation process and that the remaining residual heavy hydrocarbons would be removed through a process know as “air stripping” in which air is introduced permitting the removal of heavy hydrocarbons by vaporization.

The IEPA determined that the methane recovery facility was a new source of waste gas disposal and was thus subject to Rule 205(g)(1), “Petroleum Refinery and Petrochemical Manufacturing Process Emissions,” of the Illinois Pollution Control Board (Board) Rules and Regulations for Air Pollution Control. This rule limits the emission of organic material into the atmosphere to a “maximum of eight pounds per hour” and, as an alternate standard, provides that emissions in excess of that amount are allowable “if such emissions are controlled by air pollution control methods or equipment approved by the Agency capable of reducing by 85 percent or more the uncontrolled organic material that would otherwise be emitted into the atmosphere.” The IPEA determined that the reference point for the 85% reduction option was the 20 pounds per hour of heavy hydrocarbons gas naturally emitted from the landfill.

While awaiting action on its application for a permit, and in order to proceed with construction, Getty on August 5, 1980, indicated in a modification to its application that the recovery facility would be operated to meet the 8-pounds-per-hour alternative by a new process it was developing known as “gas stripping” instead of air stripping method.

On August 21,1980, the IEPA granted the construction permit subject to the condition that Getty comply with the requirement of Rule 205(g) (1) (C), which meant that the reference point for the 85% reduction would be the 20 pounds per hour of emission at the plant vent rather than the 220 pounds per hour emitted from the landfill. Getty then sought Board review of IEPA’s determinations (1) that its recovery facility was a petroleum refinery or a petrochemical manufacturing process subjecting it to Rule 205(g) (1); and (2) that the applicable reference point for the 85% reduction requirement was the 20 pounds per hour of heavy hydrocarbons emitted from the plant itself. On March 19, 1981, the Board determined (1) that the methane recovery facility here was not a petroleum refinery or a petrochemical manufacturing process and thus was not subject to Rule 205(g) but, rather, to the general organic emissions Rule 205(f) (which contains virtually the same emissions requirements as Rule 205(g)); and (2) that the emission subject to the 85% reduction alternative was that discharged from the facility. One member of the Board then filed a concurring opinion on April 27.

In the meantime, Getty had filed a notice of appeal on April 21 with the clerk of the Illinois Pollution Control Board following which, on May 4, 1981, it filed in this court a petition for review of the Board’s decision. The IEPA filed a motion to dismiss the petition for lack of jurisdiction, asserting that the petition was not timely and that it failed to name the Board as a respondent. On May 19, Getty moved to amend its notice of appeal to restyle it as a “Petition to Review,” to extend the time to file it, and to name the Board as a respondent. On May 21, the motion panel of this court continued the motions for consideration and disposition after the filing of the record on appeal.

Opinion

We first address the issues raised in respondent’s motion to dismiss, in which they assert that jurisdiction is lacking because petitioner failed to file a timely petition for review in this court and, in any event, did not name all necessary parties as respondents.

Taken together, sections 29 and 41 of the Environmental Protection Act (Ill. Rev. Stat. 1979, ch. lilis, pars. 1029, 1041) provide for direct review by this court of Illinois Pollution Control Board decisions. Section 29 states that “any person adversely affected or threatened by any rule or regulation of the Board may obtain a determination of the validity or application of such rule or regulation by petition for review under section 41 of this Act.” Section 41 provides in pertinent part:

“Any party to a Board hearing, any person who filed a complaint on which a hearing was denied, any person who has been denied a variance or permit under this Act, and any party adversely affected by a final order or determination of the Board may obtain judicial review, by filing a petition for review within thirty-five days after entry of the order or other final action complained of ” ° * except that review shall be afforded directly in the Appellate Court for the District in which the cause of action arose

In addition, the exclusive procedure for direct review of orders of an administrative agency in the appellate court is found in Supreme Court Rule 335 (Ill. Rev. Stat. 1979, ch. 110A, par. 335), which states in part that a petition for review shall be filed in the appellate court and must name as respondents the agency and all other parties of record. Subsection (h) (1) thereof further provides that “[ijnsofar as appropriate, the provisions of Rules 301 through 373 (except for Rules 321 through 326) are applicable to proceedings under this rule.”

Respondents maintain in their motion, and we agree, that the notice of appeal filed by Getty with the Board on April 21, 1981, was not in compliance with Supreme Court Rule 335. Respondents also argue that we lack jurisdiction to hear this appeal because Getty’s petition for review, filed in this court on May 4,1981, was not in compliance with Rule 335 in that it was filed 46 days after the Board’s March 19 final order and because Getty did not name the Board as respondent.

The petition for review required under Rule 335 serves as notice of appeal. (See Committee Comments to Rule 335 (Ill. Rev. Stat., ch. 110A, par. 335, Committee Comments, at 121 (Smith-Hurd 1976)).) We are of the opinion that Rule 303(e) (Ill. Rev. Stat. 1979, ch. 110A, par. 303(e)), which provides for an extension of time in certain circumstances — “On motion supported by a showing of reasonable excuse for failure to file a notice of appeal on time * * * filed in the reviewing court within 30 days after expiration of the time for filing a notice of appeal, the reviewing court may grant leave to appeal ” 0 *” is applicable through Rule 335(h) (1), and we find that the May 19 motions to amend the notice of appeal filed in this court and for an extension of time to file a petition for review satisfy the requirements of the Rule. Accordingly, we conclude that we have jurisdiction over this appeal.

We next address Getty’s contention that the Board erred in its determination that the proper reference point for the 85% reduction provision of Rule 205(f) (1) (C) was the 20 pounds per hour of heavy hydrocarbons emitted from the methane recovery facility rather than the 220 pounds per hour naturally emitted from the landfill.

The appropriate standard for review of Board decisions depends on whether the Board was acting in a quasi-legislative or quasi-judicial capacity. (Monsanto v. Pollution Control Board (1977), 67 Ill. 2d 276, 367 N.E.2d 684.) Where the Board reviews the denial of a construction permit, it is acting in a quasi-judicial function, and the appropriate standard for review by this court is the manifest weight of the evidence. (Environmental Protection Agency v. Pollution Control Board (1980), 88 Ill. App. 3d 71, 410 N.E.2d 98.) Furthermore, the reviewing court must defer to, and will not overrule, the Board’s interpretation of its own rules and regulations unless such construction is plainly erroneous. Modine Manufacturing Co. v. Pollution Control Board (1976), 40 Ill. App. 3d 498, 351 N.E.2d 875.

Thus, the question presented is whether the Getty facility emission was the proper reference point for the 85% reduction provision of Rule 205(f) (1) (C). In this regard, we initially note that Getty concedes that its facility (a) is an emission source which is defined in Board Rule 101 as “any equipment or facility of a type capable of emitting specified air contaminants to the atmosphere”; and (b) is subject to Rule 205(f), which specifically states that “no person may cause or allow the discharge of more than 8 pounds per hour of organic material into the atmosphere from any emission source” except “emissions in excess of that amount are permitted in such emission is controlled by 0 6 * any other air pollution control equipment approved by the Agency capable of reducing by 85 percent or more the uncontrolled organic material that would be otherwise emitted into the atmosphere.”

In support of its contention that the Board’s reference point determination was against the manifest weight of the evidence, Getty argues that the evidence disclosed certain environmentally beneficial results which were not considered by the Board — namely, that in using air stripping process its facility completely fulfilled the objective of the 85% reduction provision in that its emission was only 20 pounds per hour, whereas that of the landfill was 220 pounds per hour; that the operation of its facility transforms emissions from an unregulated source (the landfill) into emissions for a regulated source (the facility plant vent); and that unlike normal industrial operations, the facility does not bring about organic emissions, but instead brings about a reduction of the already existing landfill emissions. Furthermore, Getty states that while it agreed that its facility was not a “pollution control device” defined in Board Rule 101 as “any equipment or facility of a type intended to eliminate, prevent, reduce or control the emission of specified air contaminants to the atmosphere,” the Board rejected its argument that by way of analogy it could have been treated as a pollution control device for the purpose of the application of the 85% reduction standard. Additionally, Getty argues that while there was testimony that the use of a gas stripping process in place of air stripping would reduce the emission from its facility to the 8 pound per hour alternative, the testimony shows that the gas stripping process is impractical because of excessive cost and because the 8-pound-per-hour standard could not be met if the present facility was expanded beyond the present use of 5 million cubic feet of gas or in a larger facility.

It thus appears to be Getty’s position that because of its unique aspects, the facility is a hybrid of a processing plant and emission reduction device which, while it processes methane, also accomplishes a substantial reduction in heavy hydrocarbon emissions and, because it was a type of facility not contemplated when Rule 205 was adopted, its operation using air stripping achieves the 85% reduction standard of that Rule and, in view thereof, Getty argues that the Board improperly determined the facility plant vent to be the reference point for that standard.

We are of the belief, however, that the Board’s decision was not against the manifest weight of the evidence. Furthermore, it appears to us that any interpretation other than made by the Board of its own rule would be inconsistent therewith, as Rule 205(f) (1) (C) specifically limits the 85% alternative to air pollution control equipment. Moreover, we are of the opinion that, in effect, Getty is asking this court to devise a new rule applicable to a methane recovery facility or to create an exception to Rule 205(f). While the Getty recovery facility may not have been a type of system contemplated by the Board when its rules were adopted, and although the decision appears to apply form over substance as the facility unquestionable produces environmentally beneficial results, we do not view it to be within our authority to change, amend, or revise its rules or regulations. The Board, however, pursuant to its authority under the Environmental Protection Act (Ill. Rev. Stat. 1979, ch. IIB2, pars. 1028, 1036, 1037), has provided specific procedures for the adoption and amendment to Board regulations (Illinois Pollution Control Board Procedural Rules 201 through 216) and for the creation of variances for relief from particular provisions of those regulations (Illinois Pollution Control Board Procedural Rules 401 through 412).

In sum, we have concluded that this court has jurisdiction over this appeal, and we affirm the decision of the Board.

Affirmed.

MEJDA and WILSON, JJ., concur.

       No appeal has been taken by the IEPA from this determination.


author: JUSTICE McGLOON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KENNETH BUNTING, Defendant-Appellant.
    First District (1st Division)
    No. 80-1644
    Opinion filed February 1, 1982.

      James J. Doherty, Public Defender, of Chicago (R. H. R. Silvertrust, Assistant Public Defender, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Dean C. Morask, and Raymond F. Brogan, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McGLOON

delivered the opinion of the court:

After a jury trial, defendant Kenneth Bunting was found guilty of murder and robbery and sentenced to 28 years in the Illinois Department of Corrections. On appeal, defendant contends that (I) the State failed to prove his guilt beyond a reasonable doubt; (2) the jury was instructed incorrectly; and (3) prosecutorial misconduct denied him a fair trial.

We affirm.

Raymond Chester was shot on the morning of August 8, 1977, and died after he was taken by police to the hospital. The victim’s wife Patricia Chester testified that prior to the incident, the victim had answered a knock on their apartment door. Mrs. Chester remained in the bedroom and heard the victim and at least three other men talking loudly. Moments later, two gunshots were fired. Mrs. Chester crawled out the bedroom window and ran to the front of the apartment. She saw three men inside standing near her front door, but could not identify them because their backs were toward her. It appeared that the men were looking into a bedroom. Mrs. Chester then went to a neighbor’s apartment and phoned police.

Mrs. Chester further testified that defendant had been to her apartment once before to purchase marijuana from her husband. She had seen defendant in the neighborhood on prior occasions and knew that his aunt lived next door.

The parties then stipulated to the testimony of T. J. McNulty and Dennis O’Neill. McNulty, a Chicago Police Department evidence technician, photographed the apartment and examined several items for fingerprints, including a cardboard box in the back bedroom. O’Neill, a fingerprint éxaminer for the police department, compared defendant’s fingerprints with those found on the box and determined that the prints were identical.

Assistant State’s Attorney Phillips testified that he spoke with defendant on August 14,1977, after defendant’s arrest. Defendant initially stated that Carl Garland had asked him to join in a robbery of the victim, but defendant refused. However, defendant followed Garland and two other men to the victim’s apartment and fled when the shots were fired. When Phillips informed defendant that his fingerprint was found on a box in the apartment, defendant admitted entering the apartment to search for items to take.

Phillips further testified that defendant agreed to make a statement concerning the incident. The statement which was read into evidence indicated that defendant went with Garland and the other men to the victim’s home. He stood among the men as Garland knocked on the door. When the victim answered, Garland demanded money and drugs. The victim reached for Garland’s revolver, but Garland fired twice. Defendant entered the apartment and rifled through boxes and containers on a dresser in one of the bedrooms and took two watches. After defendant made this statement he read it, made changes, and signed it.

Defendant testified on his own behalf. He testified that when he was approached by Garland, he refused to participate in the robbery. When Garland left, defendant decided to go to his aunt’s apartment which was located next to the victim’s apartment. As he entered the building, he saw Garland shoot the victim. He was frightened and hid in a storage closet for approximately two minutes. Afterwards, he entered the apartment and took two watches from the bedroom.

First, defendant argues that the evidence was insufficient to prove his guilt under an accountability theory. He contends the evidence overwhelmingly shows that he refused to participate in the venture when asked by Garland. He further maintains that Assistant State’s Attorney Phillips’ questioning was vague and misleading and that therefore the statement he made did not reflect the truth.

In order to prove guilt under the accountability statute, the State must establish that defendant, either before or during the commission of an offense and with the intent to promote or facilitate the commission of the offense, solicited, aided, abetted, agreed or attempted to aid another in the planning or commission of said offense. (People v. Baynes (1980), 87 Ill. App. 3d 1000, 410 N.E.2d 894; People v. Grice (1980), 87 Ill. App. 3d 718, 410 N.E.2d 209.) Mere presence or negative acquiescence is ordinarily insufficient to establish accountability, but one may aid or abet without actively participating in the overt act. (People v. Grice; People v. Crutcher (1979), 72 Ill. App. 3d 239, 390 N.E.2d 571; People v. Guiterrez (1979) , 71 Ill. App. 3d 895, 390 N.E.2d 438.) In deciding this issue, the trier of fact may consider defendant’s presence at the crime (People v. Gray (1980) , 87 Ill. App. 3d 142, 408 N.E.2d 1150) and acts performed after the commission of the crime. People v. Fuller (1980), 91 Ill. App. 3d 922, 415 N.E.2d 502; People v. Clifford (1976), 38 Ill. App. 3d 915, 349 N.E.2d 922.

The evidence indicated that defendant accompanied Garland and the others to the victim’s apartment after being told of the robbery plan. He stood among the other offenders as the victim answered the door, entered the apartment after the shooting, and took two watches. He did not attempt to stop the incident or aid the victim and did not phone the police. From these facts, the jury could properly conclude that defendant was accountable for Garland’s acts.

Many pertinent facts were obtained from defendant’s statement to Phillips. After reviewing the statement, we do not agree with defendant that Phillips was deliberately vague or misleading. Twice, Phillips asked defendant if he went with the others to the apartment after being told of the robbery plan. Each time, defendant responded that he did. Other questions asked by Phillips were general and defendant was permitted to answer them any way he wished. He was permitted to add material at the end. He read the statement and made corrections before signing it. Thus, defendant was not forced to give misleading or incorrect answers in the statement.

Second, defendant contends that the jury was instructed improperly. Pertinent portions of the murder and robbery instructions are as follows:

“To sustain the charge of murder, the State must prove the following propositions:
FIRST: That the defendant, or one for whose conduct he is responsible, performed the acts which caused the death of Raymond Chester; and
SECOND: That when the defendant, or one for whose conduct he is responsible, did so,
he intended to kill or do great bodily harm to Raymond Chester, or
he knew that his act would cause death or great bodily harm to Raymond Chester, or
he knew that his acts created a strong probability of death or great bodily harm to Raymond Chester, or
he was attempting to commit or was committing the crime of robbery. * e *.”
“To sustain the charge of robbery, the State must prove the following propositions:
FIRST: That the defendant, or one for whose conduct he is responsible, took property from the person or presence of Raymond Chester; and
SECOND: That the defendant, or one for whose conduct he is responsible, did so by the use of force or by threatening the imminent use of force. * * *.”

The following accountability instruction was given:

“A person is responsible for the conduct of another person when, either before or during the commission of a crime, and with the intent to promote or facilitate the commission of a crime, knowingly solicits, aids, abets, agrees or attempts to aid the other person in the planning or commission of the crime.”

Defendant maintains that the murder and robbery instructions should have included language from the accountability instruction regarding intent. He argues that the instructions given separately were misleading and unclear and that the jury should not have been compelled to consider them in conjunction with each other.

Initially, we note that defendant failed to tender alternate instructions during trial. Thus, the error was not properly preserved for review. People v. Tannenbaum (1980), 82 Ill. 2d 177, 415 N.E.2d 1027; People v. Carey (1981), 94 Ill. App. 3d 631, 418 N.E.2d 1119; People v. Anderson (1981), 93 Ill. App. 3d 646, 417 N.E.2d 663.

Assuming the issue is properly before this court, we find that the jury was instructed correctly. As noted in People v. Gaskins (1980), 82 Ill. App. 3d 37, 402 N.E.2d 258, it is neither necessary nor possible for a single instruction to state all the law applicable to a case. Therefore, a jury is properly instructed if the instructions, considered as a whole, fully and fairly define the applicable law. Gaskins; People v. Williams (1980), 80 Ill. App. 3d 963, 400 N.E.2d 532; People v. Mitchell (1979), 78 Ill. App. 3d 458, 397 N.E.2d 156.

Here, the instructions, construed as a whole, are clear. Each issue instruction includes the phrase “that defendant or one for whose conduct he is responsible.” This phrase is defined correctly in the accountability instruction. Contrary to defendant’s contention, it is not necessary for the jury to interpolate to decide the elements of accountability. In People v. Heflin (1978), 71 Ill. 2d 525, 376 N.E.2d 1367, the court found that separate murder and accountability instructions were unambiguous. The court further noted the instructions clearly provided that the intent to promote or facilitate a crime was a prerequisite to a finding of responsibility for another’s crime. For the aforementioned reasons, we find that the trial court did not err in giving separate instructions.

Third, defendant contends that various comments made by the prosecution during closing argument were improper and that he was thereby denied a fair trial. He first complains of the statements that defendant knew he would accompany Garland to the victim’s apartment and that defendant’s motive for doing so was to obtain money and drugs. Defendant maintains that there is no evidence in the record supporting these comments. Regarding the first comment, a brief review of the facts indicates that the comment was based on the evidence. We further find that the second comment was proper. During closing arguments, a prosecutor may draw legitimate inferences from facts and circumstances proved and motive is a proper subject of comment. (People v. Lawson (1980), 86 Ill. App. 3d 376, 407 N.E.2d 899.) The facts in this case and the testimony of defendant show that the purpose for going to the victim’s apartment was to rob the victim. Thus, the prosecutor’s comment was not outside the bounds of permissible argument.

Defendant further argues that the prosecutor inflamed the jury when, in explaining Mrs. Chester’s failure to see defendant among the men near the apartment, he stated that defendant was inside “scavenging like a vulture over a dead body.” Although a prosecutor may not make statements intended to inflame the jury, he may denounce defendant’s wickedness, engage in some degree of invective, and draw inferences unfavorable to defendant if such inferences are based upon the evidence. (People v. White (1977), 48 Ill. App. 3d 907, 363 N.E.2d 408.) Here, the prosecutor’s comment was not improper, particularly given defendant’s testimony that he entered a bedroom and took two watches. A legitimate inference from this fact is that defendant was not within Mrs. Chester’s view as she looked into the apartment. We do not believe that the simile used by the prosecutor in drawing this inference was so inflammatory that it constituted error.

For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.

Judgment affirmed.

CAMPBELL, P. J., and O’CONNOR, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. ARTHUR DeLISLE, Defendant-Appellee.
    First District (1st Division)
    No. 80-2386
    Opinion filed February 1, 1982.
    Richard M. Daley, State’s Attorney, of Chicago (Marcia B. Orr, Warren A. Zimmerman, and Sandra M. Stavropoulos, Assistant State’s Attorneys, of counsel), for the People.
    Anthony J. Onesto and Joseph M. Giglio, both of Onesto, Giglio & Associates, of Chicago, for appellee.
   JUSTICE McGLOON

delivered the opinion of the court:

Following his arrest for possession of cocaine, defendant moved to quash the search warrant and suppress the evidence. The trial court granted defendant’s motion. The State now appeals.

The issues on appeal are: (1) whether the investigatory stop of defendant was proper; and (2) whether defendant voluntarily surrendered his travel bag.

We affirm.

Arthur DeLisle (defendant) arrived at O’Hare Airport on a commercial airline flight from Fort Lauderdale, Florida, at 12:05 a.m. on June 4, 1980. As he disembarked from the airplane, defendant was observed by Investigator Thomas Kinsella, who was present at the airport for the purpose of detecting unlawful narcotics traffic. Defendant was the first passenger to exit the plane. When he arrived in the concourse area, defendant looked up and down the concourse several times. He walked to a pay telephone, placed a brief call and then proceeded toward the baggage area. Defendant stood for approximately five minutes scanning the baggage area. After he retrieved his travel bag, he walked speedily toward the exit door.

Kinsella approached defendant and identified himself as a police officer. At this point, Kinsella was joined by other surveillance officers. Kinsella asked defendant for some identification and his airline ticket. Defendant produced an Illinois driver’s license in his own name and told the officers he did not have his airline ticket. Kinsella claims that defendant was nervous and visibly shaking as he took his driver’s license from his wallet. Kinsella asked defendant if he would consent to a search of his bag. Defendant refused. Kinsella told defendant that he would have to seize the bag and give defendant a receipt for the bag.

Defendant telephoned his attorney, who informed defendant that unless the officer had a search warrant, he was not required to surrender the bag. Defendant told the attorney that the officers would arrest him if he did not turn over the bag. The attorney told defendant that if he had no other choice, then he should surrender the bag and obtain a receipt.

Defendant relinquished his travel bag and left the airport. Kinsella placed defendant’s bag in a room with five other pieces of luggage. A certified dog handler ordered a narcotics dog to find narcotics. The dog sniffed the luggage and attempted to bite defendant’s travel bag. Based on the dog’s positive reaction, Kinsella obtained a search warrant. Cocaine was found in defendant’s travel bag, and defendant was charged with possession of cocaine. Ill. Rev. Stat. 1979, ch. 5@z, par. 1402.

On August 11, 1980, defendant made a motion to quash the search warrant and suppress the evidence. The trial court found that the seizure in the original instance was illegal and, therefore the search warrant was invalid and evidence obtained pursuant to that warrant was inadmissible. The State appeals.

First, we must consider whether Investigator Kinsella’s investigatory stop of defendant was proper. Such a stop is proper if a police officer can point to specific and articulable facts which taken together with rational inferences from those facts, reasonably warrant the intrusion. (Terry v. Ohio (1968), 392 U.S. 1, 21, 20 L. Ed. 2d 889, 906, 88 S. Ct. 1868, 1880; Ill. Rev. Stat. 1979, ch. 38, par. 107 — 14.) There are no per se rules for determining whether an investigatory stop is justified. Each case must be decided on its own facts. Coolidge v. New Hampshire (1971), 403 U.S. 443, 509-10, 29 L. Ed. 2d 564, 608, 91 S. Ct. 2022, 2060; People v. Kelly (1979), 76 Ill. App. 3d 80, 84, 394 N.E.2d 739.

In the present case, Officer Kinsella’s suspicion was founded on the following facts: (1) defendant arrived on a 12:05 a.m. flight from Fort Lauderdale, a known source city for cocaine for Chicago; (2) he was the first passenger to exit the airplane; (3) after he disembarked from the plane, defendant looked up and down the concourse; (4) he went to a telephone, again looked up and down the concourse and then placed a brief phone call; (5) while walking toward the main terminal, he repeatedly looked over his shoulder; (6) he boarded an escalator and continued to look behind; (7) he stood at the baggage area looking at all the people in the area for approximately five minutes without retrieving his bag; (8) when he retrieved his small travel bag from the luggage rack, he quickly walked toward the exit door; (9) he appeared to be nervous and was visibly shaking when he produced his driver’s license pursuant to Kinsella’s request; (10) when Kinsella asked for a copy of his airline ticket, defendant said he did not have one.

The State argues that defendant exhibited conduct which conformed to the so-called “drug courier profile” and, therefore, an investigatory stop was warranted. The State points to four characteristics as being indicative of criminal activity: nervousness, walking rapidly from the baggage area; arrival from a source city; and possession of limited luggage.

We believe that many persons who are not drug couriers exhibit these same characteristics. (See Reid v. Georgia (1980), 448 U.S. 438, 65 L. Ed. 2d 890, 100 S. Ct. 2752 (per curiam).) Nervousness is characteristic of many innocent travelers, especially where they are anticipating the arrival of family or friends. (See United States v. Andrews (6th Cir. 1979), 600 F.2d 563.) Similarly, the anticipation of a reunion with family or friends explains why many travelers walk rapidly toward the exit after retrieving their baggage. Travelling from Fort Lauderdale, Florida, cannot be regarded as suspicious. Although it is a major narcotics distribution center, the probability that any given passenger from a source city is a drug courier is infinitesimally small. (See United States v. McCaleb (6th Cir. 1977), 552 F.2d 717.) Travelling with a single bag is also very common. See United States v. Ballard (5th Cir. 1978), 573 F.2d 913.

These facts, when considered individually or in combination, do not distinguish defendant from many other travelers. Officer Kinsella’s stop, based on these facts, was an arbitrary and oppressive interference with defendant’s privacy. We conclude that Kinsella did not have a reasonable suspicion to stop defendant and, therefore, the stop was in violation of the fourth amendment.

Relying on United States v. Mendenhall (1980), 446 U.S. 544, 64 L. Ed. 2d 497, 100 S. Ct. 1870, the State argues that the encounter between Kinsella and defendant was not a seizure and, therefore, need not rest on any fourth amendment safeguards. On facts very similar to those in the instant case, Justice Stewart found in Mendenhall that “respondent had [no] objective reason to believe that she was not free to end the conversation in the concourse and proceed on her way, and for that reason we conclude that the agents’ initial approach to her was not a seizure.” (446 U.S. 544, 555, 64 L. Ed. 2d 497, 510, 100 S. Ct. 1870, 1878.) Since only one other justice concurred with Stewart on the seizure issue, we are not required to follow Justice Stewart’s finding that a seizure did not take place.

Next, the State argues that defendant voluntarily surrendered his travel bag. Voluntariness is a determination to be made from the totality of all the circumstances. (Schneckloth v. Bustamonte (1973), 412 U.S. 218, 227, 36 L. Ed. 2d 854, 863, 93 S. Ct. 2041, 2048.) It is a matter which the government has the burden of proving. (Bumper v. North Carolina (1968), 391 U.S. 543, 548, 20 L. Ed. 2d 797, 802, 88 S. Ct. 1788, 1792.) The government’s burden is much heavier where, as here, the consent was given after an impermissible stop. United States v. Ballard (5th Cir. 1978), 573 F.2d 913.

In the present case, Investigator Kinsella asked defendant whether he would consent to a search of his bag and advised him that he had the right not to consent. When defendant exercised that right, Kinsella informed him that he would.seize the bag and then obtain a search warrant. Defendant was permitted to call his attorney. Defendant told his attorney that he had been stopped by narcotics officers and that those officers had made it clear to him that if he did not voluntarily turn over his travel bag, he would be arrested. Acting on his attorney’s advice, defendant surrendered the bag to Kinsella.

Defendant’s telephone conversation with his attorney reveals that he believed he had to surrender the bag or he would be arrested. Although he may have misapprehended his legal rights, as a practical matter he had no choice other than to surrender the bag. We believe that his “consent” cannot be considered to have been given voluntarily. Since the trial court’s determination in this matter was not clearly erroneous, we decline to overturn its decision on appeal.

The State raises three additional issues which we need not address in light of our affirmance of the trial court’s judgment on the investigatory stop issue and the consent issue.

For the foregoing reasons, we affirm the order of the circuit court of Cook County.

Order affirmed.

CAMPBELL, P. J„ and GOLDBERG, J., concur.


author: JUSTICE GOLDBERG

text:
      In re MARRIAGE OF MARY A. BELLUOMINI, Petitioner-Appellant, and STEVEN R. BELLUOMINI, Respondent-Appellee.—(LOLA BELLUOMINI, Intervening Petitioner.)
    First District (1st Division)
    No. 81-0203
    Opinion filed February 1, 1982.
    Rehearing denied March 8, 1982.

      Edward R. Nathanson, of Chicago (Sidney Z. Karasik, of counsel), for appellant.
    Lawrence Jay Weiner & Associates and Rinella & Rinella, Ltd., both of Chicago (Lawrence Jay Weiner, Fredric Bryan Lesser, and Barry A. Schatz, of counsel), for appellee.
   JUSTICE GOLDBERG

delivered the opinion of the court:

Mary Belluomini (petitioner) appeals from an order which made dissolution of her marriage to Steven R. Belluomini (respondent) effective June 8,1980, and from the amount of maintenance and child support she was awarded.

The factual background of the instant case is fully set forth in our previous opinion Belluomini v. Belluomini (1979), 73 Ill. App. 3d 836, 392 N.E.2d 669. In brief summary, respondent lives in San Francisco, California, with Lola Belluomini, his wife of over 30 years. The couple has three children. Respondent made recurrent business trips to Chicago. He met petitioner, who was employed as a cocktail waitress at a Chicago hotel. They eventually became “closely intimate.” Petitioner became pregnant. A child, Jeffrey, was born on May 19, 1974. Despite his valid marriage to Lola, respondent went through a marriage ceremony with petitioner in November of 1973. The parties never established a common residence.

In the original proceedings in the trial court, petitioner’s request for a divorce was denied and respondent’s request for an annulment was granted. The judgment was entered March 11, 1977. In addition, by supplemental judgment on June 15,1977, the trial court granted petitioner $75 a week in child support for Jeffrey.

In our previous opinion, we found petitioner married respondent without knowledge of his previous marriage. Therefore, petitioner was the “injured party” under the law of Rlinois then in effect (Ill. Rev. Stat. 1975, ch. 40, par. 1), and was entitled to her election of a divorce or annulment. (Belluomini v. Belluomini (1979), 73 Ill. App. 3d 836, 840-41). Because petitioner had chosen divorce, we reversed the order which had granted an annulment. The trial court was directed to enter a judgment for divorce, to “consider allowance of alimony to [petitioner] and to determine the nature, amount and duration of such allowance.” (73 Ill. App. 3d 836, 843.) We affirmed all other aspects of the judgment. Our opinion was filed July 2,1979.

On remand, Lola Belluomini intervened (Ill. Rev. Stat. 1979, ch. 110, par. 26.1) seeking to protect her interest in the respondent’s assets and income. (See Ill. Rev. Stat. 1979, ch. 40, par. 305.) She submitted an affidavit attesting to the monthly expenses of her household. She estimated the total monthly expenditure at approximately $3,900. Included in her statement were the law school tuition and living expenses of her 24-year-old daughter, of approximately $8,500 annually, and tuition of $2,440 per year for the parochial school attended by her youngest daughter. Her affidavit also included rent of $700 per month, and a $750 monthly clothing allowance for herself and respondent.

Petitioner also submitted an affidavit representing her “proposed” monthly expenditures. She estimated the total of her and Jeffrey’s expenses to be $1,778 a month. Included in her estimate were $350 monthly rent, $200 in automobile maintenance, and $200 for Jeffrey’s tuition at a parochial school.

At the alimony hearing the following evidence was adduced. Respondent was 53 years old and had an average annual income of approximately $49,500. He also owns a vested interest in a profit sharing trust sponsored by his employer. The value of the trust at the time of trial was approximately $53,000. He does not own an automobile, stocks, bonds or real estate.

Petitioner, 36 years old on the date of the hearing, lives with her son in the home of her parents. She has lived there since 1972. She and her parents are owners of record of the home, but her parents have made all the mortgage payments. Petitioner does not make regular contributions to the household. She contributes some money for rent and food only when she is able.

Since 1968 petitioner has suffered from recurrent benign breast tumors. She has undergone seven operations to remove these tumors. Petitioner has also suffered from a respiratory ailment, pseudomonas, and has been diagnosed to have a heart murmur. At time of trial, however, petitioner was not under medication for either condition. Petitioner estimated her personal medical expenses to be $30 a month. She has not been gainfully employed since 1974, and does not have an automobile, money, or other assets. She is totally dependent for support on her parents, and on support payments by respondent.

Jeffrey was born with a congenital partial paralysis of the pupil of his left eye. He requires special glasses and regular medical supervision. Petitioner estimated her medical expenses on behalf of Jeffrey at $50 a month. Jeffrey currently attends a Chicago public school, but petitioner wishes him to attend a parochial school near their home.

The judgment for divorce presently appealed from became effective by its terms as of June 8, 1980. In addition the trial court awarded petitioner an unallocated sum of $450 per month as alimony and child support through the minority of Jeffrey pending petitioner’s death or remarriage, and attorney Pees. The trial court also found respondent was then currently in arrears $3,011 in child support payments which accrued pursuant to the supplemental judgment of June 15, 1977. The trial court rejected petitioner’s contention that respondent was in arrears an additional $2,819. The court likewise declined to assess interest on the arrearage, and rejected petitioner’s contention that the original order entered July 30, 1975, required respondent to pay petitioner 15% of his annual bonuses received past 1976.

In this court petitioner contends the trial court’s determination of alimony and child support was inadequate and unjust considering the respective conditions of, the parties. Petitioner argues the trial court should have made the dissolution of marriage effective March 11, 1977, rather than July 8, 1980; she is entitled to reasonable alimony or maintenance effective as of March 11,1977; the trial court erroneously computed the child support arrearage due petitioner; the order specifying unallocated child support and alimony was improper; and petitioner was entitled to 15% of respondent’s annual bonuses from July 30, 1975, to the effective date of the judgment for divorce.

The respondent contends the judgment for divorce was properly entered on July 8, 1980; the trial court acted within its discretion in ordering unallocated child support and maintenance, in denying interest on past child support arrearages and in denying additional arrearages; petitioner is not entitled to 15% of respondent’s bonuses paid after 1975, and respondent is entitled to a judgment for annulment.

I

First, we must decide which law governs the instant appeal. In our earlier opinion we held the prior Illinois divorce law was applicable because the notice of cross-appeal was filed on September 30, 1977, the day before the current law became effective. (Belluomini v. Belluomini (1979), 73 Ill. App. 3d 836, 840.) However, because the issues involved in the present appeal became pending in the trial court after the effective date of the current act, the new act applies. Ill. Rev. Stat. 1979, ch. 40, par. 801(b); Bentley v. Bentley (1981), 84 Ill. 2d 97, 99, 417 N.E.2d 1309.

II

Next, we must decide on what date the dissolution of marriage became effective. In our mandate to the trial court and in our earlier opinion, we stated the “judgment of March 11, 1977, * * * [for annulment] is reversed and the cause is remanded with directions for entry of a proper judgment for divorce in favor of [petitioner] ° e

Petitioner avers the trial court erroneously made the dissolution of marriage effective July 8,1980. Petitioner argues the action was contrary to the mandate of this court to enter a “proper judgment for divorce.” Petitioner’s theory is the reversal by this court of the annulment entered on March 11,1977, indicated the trial court should initially have entered a dissolution on that date. Therefore, on remand, the trial court should have made the dissolution effective from the date of the erroneous annulment. Otherwise, petitioner contends, there would be implicit judicial sanction to a bigamous situation existing between 1977 and 1980, i.e., the concurrent marriages of respondent to both petitioner and his first wife.

Respondent counters that the trial court was correct in making the dissolution effective from the date judgment was entered, July 8, 1980. Respondent argues the order of the trial court was not yiolative of this court’s mandate and making the dissolution effective retroactively from March 11, 1977, would constitute a nunc pro tunc order which was beyond the authority of the trial court. We do not agree with either argument.

We do not believe our mandate required the trial court to order a dissolution retroactive from the date of the erroneous annulment. The opinion and the mandate specify no date upon which the divorce should be effective. On the other hand, we do not believe it is either logical or equitable for the opinion of this court to become effective more than a year after it was pronounced. Upon our reversal of the annulment we mandated the entry of a proper dissolution on behalf of petitioner. In this regard, the trial court had no discretion. (See PSL Realty Co. v. Granite Investment Co. (1981), 86 Ill. 2d 291, 308, 427 N.E.2d 563; Bradley v. Howard Hembrough Volkswagen, Inc. (1980), 89 Ill. App. 3d 121, 124, 411 N.E.2d 535.) Therefore, no hearings were required before judgment for dissolution could be entered.

The mandate of the appellate court is simply the vehicle by which the judgment is transmitted to the trial court. The judgment of the appellate court becomes effective upon the date it is entered. (PSL Realty Co. v. Granite Investment Co. (1981), 86 Ill. 2d 291, 304.) We see no reason why the dissolution of marriage should not be effective from the date this court filed its opinion requiring the trial court to enter the judgment. Therefore, we hold the dissolution of marriage between these parties became effective July 2, 1979, the date our opinion was filed.

We agree with petitioner that she is entitled to maintenance, as well as child support, from July 2,1979, the effective date of dissolution of the marriage. Therefore, she is presently entitled to the difference between the child support actually paid by respondent from July 2,1979, to July 8, 1980, and the amount she would have received had the dissolution been effective on July 2,1979. Respondent was required to pay $75 per week in child support pursuant to the order of June 15, 1977, and is currently required to pay an unallocated sum of $450 per month in child support and maintenance pursuant to the final order of the trial court entered July 8,1980. We have thus made the unallocated payment of child support and maintenance effective retroactively to July 2,1979. We therefore calculate petitioner is entitled to an additional payment in the amount of $1,524.66 for the period from July 2, 1979, to July 8,1980.

Ill

Next we must determine the propriety of the unallocated award of $450 per month for maintenance and child support. Petitioner contends the amount of the award is inequitable and it should be increased and allocated between maintenance for petitioner and child support for Jeffrey. Petitioner cites the relatively comfortable life style of the Belluomini California household and compares it to the relatively modest income she receives. Petitioner also contends it was improper for the trial court to consider the educational expenses of the Belluomini’s eldest daughter, who was then attending law school.

Initially, we must stress the determination of maintenance is largely discretionary with the trial court. (In re Marriage of Asch (1981), 100 Ill. App. 3d 293, 296, 426 N.E.2d 1066.) In a situation such as the case at bar, the trial court should not enter an order which would be substantially inconsistent with the interests of respondent’s first wife and family. (Ill. Rev. Stat. 1979, ch. 40, par. 305.) Furthermore, the new act specifically condones the payment of educational expenses beyond the emancipation of a child. (Ill. Rev. Stat. 1979, ch. 40, par. 513.) For these reasons, it was not an abuse of discretion for the trial court to consider the current life style of Lola Belluomini and her family and to include the educational expenses of their nonminor child, in its determination of maintenance to petitioner.

We believe the limitation of maintenance for petitioner herself is justified because of the short duration of the marriage and the fact that the parties had not established a marital standard of living. (Ill. Rev. Stat. 1979, ch. 40, par. 504(b).) We do not believe, however, that the obvious distinction between respondent’s marriages to petitioner and Lola should have a bearing upon the proper support of the child Jeffrey. Jeffrey is no less a child of respondent than are his children in California. Jeffrey is therefore entitled to the same, or at least similar, benefits as the others.

The record indicates respondent’s youngest daughter in California is receiving a parochial education. Petitioner testified she desired Jeffrey also to receive such an education. It is manifest from the judgment of the trial court that the educational expense of Jeffrey at a parochial school was not included in the award of child support. Therefore, we hold the unallocated award to petitioner is to be increased by $200 a month to a total of $650, from the date hereinafter stated to provide for Jeffrey’s parochial education. We believe this allowance will offer Jeffrey benefits enjoyed by respondent’s other children while not inflicting an undue hardship on respondent’s family in California.

Concerning the allocation of the award between maintenance and child support, the trial court is allowed, even encouraged, to consider tax consequences in making its determination. (See In re Marriage of Mass (1981), 102 Ill. App. 3d 984, 431 N.E.2d 1.) Because of the obviously disparate tax situations of the parties, the trial court did not abuse its discretion in specifying unallocated payments to reduce the tax burden on respondent. Therefore, the decision of the able trial judge in providing that the payments by respondent be unallocated between child support and maintenance is affirmed.

IV

We now address the issue of child support arrearages. Petitioner contends the trial court erred in not sustaining her claim that respondent was in arrears $5,830 rather than $3,011, and in not assessing interest on the arrearage. We disagree.

The question of the amount owed petitioner by respondent is a factual question for the determination of the trial court, and its decision will not be disturbed unless it is contrary to the manifest weight of the evidence. (See In re Marriage of Jones (1980), 90 Ill. App. 3d 95, 96, 412 N.E.2d 1122.) In the case at bar we cannot say the finding of the trial court as to the amount of arrearage in support payments is contrary to the manifest weight of the evidence. Therefore, this judgment is affirmed.

The assessment of interest upon arrearages is a matter of discretion for the trial court. (Finley v. Finley (1980), 81 Ill. 2d 317, 332, 410 N.E.2d 12.) There is nothing in the current record to suggest an abuse of discretion in not assessing interest. Therefore the judgment denying interest is affirmed. However, this decision does not in any way preclude the future assessment of interest in the event respondent hereafter becomes delinquent in future payments.

V

Petitioner contends she is entitled to 15% of respondent’s annual bonuses from 1975 to the effective date of their divorce pursuant to a court order of July 30,1975. In that order the court awarded petitioner 15% of respondent’s income as “temporary” maintenance and support. By order filed March 11,1976, the trial court modified this temporary order to $50 per week and declared respondent in arrears in payments of the original temporary maintenance. The March 11, 1976, order did not indicate that the 15% formula would extend beyond the effective period of the earlier order. Therefore, we conclude the original order directing the payment of 15% of respondent’s annual bonus as temporary maintenance was superseded by the later order for temporary maintenance. The judgment of the trial court in denying petitioner’s claim to a percentage of respondent’s bonuses received after March 11, 1976, is affirmed.

VI

Finally, respondent asserts he is entitled to an annulment and prays this court to reverse the dissolution of marriage and direct judgment for annulment. Our previous opinion expressly reversing the judgment for annulment and directing judgment for dissolution of the marriage has become the law of the case, and we are constrained to act in accordance with our previous decision. (PSL Realty Co. v. Granite Investment Co. (1981), 86 Ill. 2d 291, 312.) Therefore, the judgment for dissolution is affirmed.

The judgment of the trial court granting petitioner a dissolution of marriage is accordingly affirmed but is modified to be effective as of July 2,1979. The trial court is directed to require respondent to pay petitioner the sum of $1,524.66 in additional child support and maintenance for the period from July 2,1979 to July 8,1980. Insofar as the trial court awarded unallocated child support and maintenance to petitioner the judgment is affirmed. However, the trial court is directed to increase the amount of said payments to $650 per month, effective from the date this opinion is filed. In all other respects the judgment of the trial court is affirmed.

Affirmed in part, modified in part and remanded with directions.

CAMPBELL, P. J., and McGLOON, J., concur.