author: Mr. JUSTICE WEBBER

text:
      In re CUSTODY OF BERNICE JOSETHE MYER, a Minor.—(RONALD C. MYER, Petitioner-Appellant, v. CANDIDA ALVARADO, Respondent-Appellee.)
    Fourth District
    No. 17034
    Opinion filed September 9, 1981.

      Charles G. Reynard, of Bloomington, for appellant.
    John H. Tielsch, of Normal, for appellee.
   Mr. JUSTICE WEBBER

delivered the opinion of the court:

This appeal presents an unusual question concerning the scope of the custody provisions of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1979, ch. 40, pars. 601-610) (Act).

Petitioner and respondent enjoyed a brief liaison during a tour of duty by petitioner in the United States Navy. The minor child, who is the subject of these proceedings, was the result. She was born January 6,1970. Petitioner has acknowledged paternity, and it is undisputed that petitioner and respondent have never married and that they are the natural parents of the minor.

On October 22, 1980, petitioner filed in the circuit court of McLean County a petition seeking visitation rights with the minor. It alleged the status of the parties as recited above and further alleged that during the first eight years of the minor’s life respondent and the minor resided with petitioner’s parents in McLean County for substantial periods of time. Further allegations were that a relationship of parental and filial love had arisen during that time between the minor child and the petitioner, and between the minor child and petitioner’s parents. The latter were also original petitioners but were afterwards dismissed by the trial court as improper parties.

Petitioner seeks to undertake responsibilities for the minor’s support and welfare, and, while not seeking custody, asks that reasonable visitation rights be granted to him. He alleged prior efforts at visitation but claimed that these had been frustrated by respondent.

Respondent filed a “response” to the petition. In it she admitted the circumstances surrounding the birth of the minor, essentially denied that any relationship had arisen between the child and the petitioner, detailed some of the cultural and religious differences which had arisen between her and petitioner’s parents, and admitted her firm refusal to allow visitation.

Both the petition and the response refer to an order of the juvenile court concerning the minor. The petition alleges that this order, dated June 19,1979, vests custody of the minor in respondent; the response filed in this case asks that the order be continued in full force and effect. This court, on its own motion, directed that the record in this case be supplemented with a copy of that order. It is now before us, and more will be said of it later.

The trial court took some brief evidence from the petitioner. The respondent did not appear at the hearing. Memoranda of law were submitted by counsel, and the court ultimately entered a brief order dismissing the petition on the ground that no cause of action is recognized in this State for the initiation of an original proceeding by a parent seeking visitation rights with his child when he has never had custody, has never been married to the natural mother, and the parties have never lived together as a family.

The positions of the parties on appeal may be briefly summarized as follows: Petitioner claims that the custody provisions of the Act provide a vehicle for adjudicating visitation rights under the facts of this case and that the pendency of a dissolution or separation action is unnecessary to confer jurisdiction on the trial court for such adjudication. He therefore argues that the trial court erred in finding that he could not state a cause of action. He argues further that the finding was against the manifest weight of the evidence. Since the evidence taken was so attenuated and since, further, the trial court disposed of the case on legal grounds, we will not consider at this time the latter argument.

Respondent argues that prior to the Act habeas corpus was the only vehicle by which a putative father might assert visitation rights. However, she appears to admit sub silentio that such a proceeding may be proper under the Act, but points out an allegation in the petition that custody was settled in the juvenile order of June 19,1979. Therefore, the instant case is a modification proceeding, and section 610 of the Act (Ill. Rev. Stat. 1979, ch. 40, par. 610) prohibits any modification action earlier than two years after the date of the custody order. The instant petition, having been filed approximately 16 months after the juvenile order, is therefore, in her opinion, premature. Alternatively, she argues that while section 601 of the Act permits a “custody” proceeding, section 607 (Ill. Rev. Stat. 1979, ch. 40, par. 607) dealing with “visitation” does not provide for the filing of a petition. Further, she claims, whatever the nature of the petition is in this case, it does not meet the requirements of the Habeas Corpus Act (Ill. Rev. Stat. 1979, ch. 65, par. 3).

The problem was stated tersely by Mr. Justice Simon in People ex rel. Elmore v. Elmore (1977), 46 Ill. App. 3d 504, 506, 361 N.E.2d 615, 617, as follows:

“In the absence of legislation establishing a procedure for resolving a dispute over custody of a child between parents who never have been married, society requires that the law shape an appropriate forum. The alternative is self-help, a solution not countenanced by this court because it serves the best interests of neither the child nor the parents. A court adjudicating a dispute between parents over custody of a legitimate child would be guided by what is in the best interest of the child and would best promote its welfare. [Citation.] We perceive no justification for proceeding differently with a child born out of wedlock.”

The Elmore court was facing a situation under section 13 of the former divorce act (Ill. Rev. Stat. 1975, ch. 40, par. 14) which provided insofar as is pertinent here:

“The court may, on the application of either party, make such order concerning the custody and care of the minor children of the parties during the pendency of the suit as may be deemed expedient and for the benefit of the children * ” (Emphasis added.)

Since no suit for divorce was pending, the court was forced to fall back on habeas corpus in order to grant relief.

The former statute proceeded on the common law doctrine that an illegitimate was nullius filius and made provision for legitimates only (“of the parties”) and only during the pendency of a suit. Except for details of mechanics of procedure, the former statute remained essentially unchanged from the time of enactment in 1874 until the general overhaul by the Illinois Marriage and Dissolution of Marriage Act, which became effective in 1977.

During the interim the courts were forced to invent remedies and most of them, like the Elmore court, relied on habeas corpus. However, there was a growing recognition of the problem of the rights of putative fathers. In DePhillips v. DePhillips (1966), 35 Ill. 2d 154, 219 N.E.2d 465, the supreme court acknowledged the troublesome question, which reached its culmination in Stanley v. Illinois (1972), 405 U.S. 645, 31 L. Ed. 2d 551, 92 S. Ct. 1208, wherein the Supreme Court held a portion of the Paternity Act (Ill. Rev. Stat. 1967, ch. 106 3/4, par. 62) unconstitutional as denying a putative father due process and equal protection. Following Stanley, our own supreme court held unconstitutional a portion of the Adoption Act (Ill. Rev. Stat. 1969, ch. 4, pars. 9.1 — 1E, 9.1 — 8) in People ex rel. Slawek v. Covenant Children’s Home (1972), 52 Ill. 2d 20, 284 N.E.2d 291.

In 1976, the appellate court, following a Pennsylvania decision (Commonwealth v. Rozanski (1965), 206 Pa. Super. 397, 213 A.2d 155), held in a paternity action that the putative father had rights of visitation upon a showing that his visits would not be detrimental to the best interests of the child, and conditioned upon his acknowledgment of the child and his contributing towards its support. People ex rel. Vallera v. Rivera (1976), 39 Ill. App. 3d 775, 351 N.E.2d 391.

We cannot assume that the legislature was unaware of this considerable body of authority when it enacted the Illinois Marriage and Dissolution of Marriage Act in 1977. On the contrary, we believe that section 601 of the Act (Ill. Rev. Stat. 1979, ch. 40, par. 601) was intended to provide for the situation presented in the instant case.

Section 601(b) (l)(i) and (ii) provides in pertinent part:
“(b) A child custody proceeding is commenced in the court:
(1) by a parent, by filing a petition:
(i) for dissolution of marriage or legal separation or declaration of invalidity of marriage; or
(ii) for custody of the child * ”

Two significant differences in statutory language from the former act are immediately apparent: (1) Section 601 refers to “the child,” not “the children of the parties,” and (2) the custody proceeding is independent of the dissolution litigation. This is further borne out by language found in section 603(c) (Ill. Rev. Stat. 1979, ch. 40, par. 603(c)):

“If a custody proceeding commenced in the absence of a petition for dissolution of marriage or legal separation, either under subparagraph (ii) of paragraph (1) * * * is dismissed # # # ”

It appears to us that the language of sections 601 and 603 is sufficiently broad to encompass a custody proceeding dehors a marriage relationship. Their placement in the Act is only an acknowledgment that the great bulk of cases will grow out of a marriage relationship. By utilizing section 601 in cases like the instant one, the fiction of detention which must be used in habeas corpus is avoided and the court is guided by the other sections of part VI of the Act.

We turn next to the question as to whether statutory provisions relating to custody may be employed to adjudicate only a question of visitation. We adhere to our statement in People v. Harrison (1980), 82 Ill. App. 3d 530, 402 N.E.2d 822, that visitation is a form of custody and subject to the custody rules as set forth in part VI of the Act. We do not agree with respondent’s contention that In re Custody of Mueller (1979), 76 Ill. App. 3d 860, 395 N.E.2d 677, is at odds with Harrison, or with our decision in the instant case. In Mueller, the respondent was attempting to use the modification of visitation as a bar to modification of custody. While both are aspects of the same problem, they are qualitatively different. It would be possible to plead a modification of visitation within the statutory limit (Ill. Rev. Stat. 1979, ch. 40, par. 610) as a bar to a subsequent petition for modification of visitation; it would not so act under a petition for modification of custody. The appellate court so held and quoted the Colorado court that “ ‘[l]abeling this “visitation” does not change its substance which is “custody.” ’ ” (76 Ill. App. 3d 860, 861, 395 N.E.2d 677, 678.) The bar applies, but only to like orders: custody versus custody, or visitation versus visitation.

Both parties to this appeal rely upon an order of the juvenile court dated June 19,1979, which, as we have already indicated, has been made a supplement to the record here on our order. We have examined that order with care and find that it does not apply to the instant proceeding. It was an adjudication order growing out of a shelter care prior order of the same court. It appears that the parties were each claiming rights to the minor and the threat of abduction was present. The court therefore ordered the minor taken into shelter care by the Department of Children and Family Services, pending further hearing.

The order returned the minor to the respondent with whom she had been living prior to the shelter care proceeding, and dismissed the petition. The court never proceeded to a dispositional hearing and did not retain jurisdiction of the minor. The court was simply meeting an emergency situation, and its dismissal of the petition prevents its use for any purpose in the instant proceeding. The petitioner here is in error in stating that custody was settled in the juvenile proceeding and the respondent is in error in claiming that the instant proceeding is an attempted modification.

In summary, we hold that the rights of a putative father who acknowledges an illegitimate child are recognized under the law and that he thereby assumes burdens along with benefits; that the fiction of habeas corpus is no longer a proper vehicle to enforce those rights, but at least the right of visitation is encompassed by section 601 of the Act.

The order of the circuit court of McLean County is therefore reversed and the cause is remanded with directions to that court to receive whatever additional evidence the parties may desire to offer, and to fix visitation rights of the petitioner based upon the best interests of the child in the manner provided by section 602 of the Act (Ill. Rev. Stat. 1979, ch. 40, par. 602). The court should further consider such orders of support as may be appropriate.

Reversed and remanded with directions.

MILLS and LONDRIGAN, JJ., concur.


source: Caselaw Access Project

author: Mr. JUSTICE BARRY

license: Public Domain

text:
    ROBERT G. AYRES, Plaintiff-Appellant, v. BITUMINOUS INSURANCE CO., Defendant-Appellee.
    Third District
    No. 81-57
    Opinion filed August 5, 1981.

      James J. Elson, of Canton, for appellant.
    Ross E. Morris, of Lewiston, for appellee.
   Mr. JUSTICE BARRY

Plaintiff Robert G. Ayers appeals from a declaratory judgment of the circuit court of Fulton County in favor of defendant insurer Bituminous Insurance Company.

We affirm.

The facts of this case are as follows. On March 20, 1976, plaintiff Robert Ayers was driving a car owned by Kirk Carmack when he was involved in an automobile accident with Leonard Overcash near Canton, Illinois. Almost two years later, Overcash filed a personal injury action against Ayers in the circuit court of Fulton County. Ayers requested defendant Bituminous Insurance Company to defend him in the Over-cash litigation. Bituminous was the insurer under an automobile liability insurance. policy issued to Kirk Carmack, which defined a “person insured” under the policy as any person driving the owned automobile with the permission of the named insured. Bituminous declined to tender a defense for Ayers, however, taking the position that an independent investigation had revealed that at the time of the accident with Overcash’s vehicle Ayers was driving Carmack’s car without his permission. Ayers then brought the subject declaratory judgment action against Bituminous, seeking a judicial determination that he had been driving Carmack’s car with Carmack’s permission at the time the accident occurred, and consequently should be afforded coverage by the Bituminous policy. Bituminous subsequently filed an answer and a third-party complaint joining tort plaintiff Overcash. In both its answer and third-party complaint, defendant sought the issuance of a favorable declaratory judgment. Following a hearing where conflicting testimony was introduced on the issue of permission, the circuit court entered judgment for the defendant insurer.

On appeal, plaintiff Ayers contends that because tort plaintiff Overcash’s personal injury complaint against him raised the possibility of policy coverage, the insurer was legally obligated to afford him a defense. According to plaintiff, Bituminous’ refusal to defend estopped it from claiming noncoverage under the policy issued to Carmack in the declaratory judgment proceeding. We find this contention to be without merit. It is well settled law that when a complaint is filed against an insured (or alleged insured) which raises the possibility of coverage under a policy of insurance, and the insurer believes that a defense to the policy exists, two options are available to the insurer: “seek a determination of its rights under the policy or defend under a reservation of its rights # 0 (Clemmons v. Travelers Insurance Co. (1980), 88 Ill. App. 3d 201, 209, 410 N.E.2d 445, 451, appeal allowed (1981), 82 Ill. 2d 583; accord Consolidated Rail Corp. v. Liberty Mutual Insurance Co. (1981), 92 Ill. App. 3d 1066, 416 N.E.2d 758; Sims v. Illinois National Casualty Co. (1963), 43 Ill. App. 2d 184, 193 N.E.2d 123.) If the insurer fails to exercise either of these two options and refuses to defend an insured who ultimately incurs an adverse judgment, it is estopped from raising noncoverage as a defense to an action brought to recover the policy proceeds. Here, however, the insurer utilized the first of the two options afforded by Sims, Clemmons and progeny, and sought a determination of its rights under the policy pursuant to the declaratory judgment procedure (Ill. Rev. Stat. 1979, ch. 110, par. 57.1). As a consequence estoppel does not apply.

To argue, as plaintiff does, that defendant insurer’s decision not to defend estops it from claiming noncoverage in a declaratory judgment action, the very purpose of which is to determine whether coverage exists under the terms of the policy, results in a “Catch 22” situation. If such an argument were accepted, the declaratory judgment procedure would be rendered useless to insurers in cases where they believe the existence of a policy defense negates the duty to defend. Insurers would never be able to obtain a favorable declaratory judgment, because the refusal to defend would estop them from asserting policy defenses in that proceeding. In short, insurers would have no alternative but to defend when the complaint filed against the insured or alleged insured alleges facts that raise the possibility of policy coverage. No cases leave this as the only available course to insurers. To the contrary, Sims, Clemmons and progeny make it quite clear that an insurer can avoid the estoppel consequences of a refusal to defend by utilizing the declaratory judgment procedure to seek a judicial determination of its contractual rights and liabilities.

As an additional ground for determining this first issue in defendant’s favor, we note that plaintiff Ayers did not forward an estoppel argument in the declaratory judgment action. According to counsel for plaintiff, in the trial court the only question to be addressed was whether Ayers was driving Carmack’s vehicle with the permission of the named insured at the time of the accident with Overcash. Because the estoppel argument was not presented below, it has been waived. “It has frequently been held that the theory upon which a case is tried in the lower court cannot be changed on review, and that an issue not presented to or considered by the trial court cannot be raised for the first time on review.” Kravis v. Smith Marine, Inc. (1975), 60 Ill. 2d 141, 147, 324 N.E.2d 417, 420.

The sole issue remaining in this appeal is whether the judgment of the trial court in favor of the defendant was against the manifest weight of the evidence. In Rhodes v. Sigler (1975), 27 Ill. App. 3d 1, 3, 325 N.E.2d 381, 383, this court stated:

“A court of review may not weigh evidence for the purpose of determining questions of preponderance. We may not disturb the findings of the circuit court unless those findings are manifestly without support. In determining that question we may not, in instances of conflicting testimony, substitute our judgment for the judgment of the circuit judge as to who are the more credible witnesses; and where, as here, several reasonable inferences are possible from conflicting testimony, we are obligated to accept those which support the trial court’s order.”

The question in this case is one of credibility, as there was conflicting testimony during the hearing on the sole issue of permission. As we said in Sigler, credibility is a question best left for the trial court. It is that court, and not this reviewing court, which was given the opportunity to observe the various witnesses and their demeanor while testifying. Giving great deference to the determination made by the trial court, after reviewing the record we cannot say that the judgment of the trial court in favor of defendant on the issue of permission was against the manifest weight of the evidence.

For these reasons, the judgment of the circuit court of Fulton County is affirmed.

Affirmed.

ALLOY and STOUDER, JJ., concur.

       We do not see any significance in the fact that Ayres first sought a declaratory judgment. It is the fact of the proceeding itself, and not the identity of the party initiating the proceeding, that is of legal import.


author: Mr. JUSTICE HEIPLE

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RICHARD KROHN, Defendant-Appellant.
    Third District
    Nos. 79-471, 79-439 cons.
    Opinion filed August 14,1981.
    Robert Agostinelli, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Edward F. Petka, State’s Attorney, of Joliet (John X. Breslin and Gary F. Gnidovec, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   Mr. JUSTICE HEIPLE

delivered the opinion of the court:

This cause involves two armed robberies occurring in Will County. Richard Krohn, the defendant, was found guilty of both offenses after separate bench trials. On each conviction respective sentences of 7M and 9 years in prison were imposed.

■ Krohn claims the trial court erred by not suppressing certain inculpatory statements he made to the police after his arrest. Because police lacked probable cause to arrest him, he urges, the statements made were the product of an illegal arrest. Alternatively, the defendant contends, the arrest at his home was illegal since conducted without a warrant in the absence of exigent circumstances. We affirm.

At the suppression hearing, Officer Stewart testified that on October 12, 1978, he received a message from DeKalb authorities that Gregory Austin was a suspect in armed robbery in DeKalb, Illinois. Joliet police records showed that Austin, as well as Bruce Thomas, had been arrested locally, a month earlier, for possession of a sawed-off shotgun. Both listed their address as 309 Park Road. This was defendant’s residence.

Officers Stewart and Kelly went to the Park Road home. A car described as one used in the armed robbery was parked in the driveway. The defendant and his mother were questioned by the police. The house was searched pursuant to consent. Later, the vehicle was impounded by the police. A search of the vehicle revealed a pistol and list of business names with amounts of money printed after each name. The defendant was not arrested at this time. The police departed at approximately 10 p.m. Subsequent to their departure, Austin and Thomas were apprehended driving an automobile within a block of the Krohn residence.

Thomas and Austin were taken to the Joliet police station where they were interrogated. Thomas admitted that he, Krohn and Austin robbed a Clark gasoline station and the Torch Club in Joliet. At the time of this admission, previous independent police investigation revealed the Torch Club had been robbed by two individuals who displayed a handgun and fled on foot in a southwardly direction after the felony was committed. Thomas stated he picked up Austin and Krohn after this robbery. He also said the “gun” used in the Clark station robbery was not real.

After Thomas confessed, Sergeant Kelly instructed two policemen to proceed to the Krohn residence and arrest the defendant. An arrest warrant was not obtained. The police arrived at the house at approximately 1:30 a.m. on October 13. They knocked on the door. Defendant answered. He was told he was under arrest. The defendant let the officers in the house; then he dressed, and all parties left for the police station. Subsequently, Krohn confessed to robbing the Torch Club and the Clark station. These admissions are the object of motion to suppress.

Characterizing Bruce Thomas as a police informant, defendant argues Thomas’ incriminating statements were insufficient to show probable cause to arrest. Since Thomas does not satisfy either the knowledge or credibility criteria applicable to informants (Aguilar v. Texas (1964), 378 U.S. 108, 12 L. Ed. 2d 723, 84 S. Ct. 1509; Spinelli v. United States (1969), 393 U.S. 410, 21 L. Ed. 2d 637, 89 S. Ct. 584), the police lacked probable cause to arrest the defendant. Therefore, pursuant to the exclusionary rule (Wong Sun v. United States (1963), 371 U.S. 471, 9 L. Ed. 2d 441,83 S. Ct. 407), Krohn’s statements should have been suppressed as the product of an illegal arrest.

The defendant’s improvisation of Aguilar and Spinelli is fatuous. It ignores the facts. Thomas was not an informant. He was a co-felon or accomplice. An arresting officer acting solely upon an accomplice’s statement may have probable cause to arrest a co-offender. (People v. Jackson (1979), 72 Ill. App. 3d 231, 235-36.) Quite simply, the issue is whether at the time of Krohn’s arrest the police had probable cause to arrest him. Such a consideration is based not only on the Thomas confession, but other factors in the possession of the police which led the arresting officer, as a reasonably prudent man, to believe an offense had been committed by the defendant.

The record supports probable cause to arrest Krohn at the time such arrest was made. First, an auto purportedly used in the DeKalb armed robbery was parked in Krohn’s driveway. In it was a pistol. The police reasonably believed Thomas and Austin, the latter a suspect in the DeKalb holdup, resided at the Krohn home. Finally, Thomas’ confession implicating Krohn in the Torch Club robbery was corroborated by the police’s own investigation of that offense. The Club had been robbed by two men who displayed a handgun and afterwards fled on foot in the direction where Thomas stated he picked them up in his automobile. The fact that Thomas’ information was hearsay is not fatal. (People v. Denham (1968), 41 Ill. 2d 1, 5.) This is especially so where, as here, the police’s own investigation, in part, corroborated the co-felon’s admissions.

Krohn’s second contention, that his warrantless arrest in his home is unlawful (Payton v. New York (1980), 445 U.S. 573, 63 L. Ed. 2d 639,100 S. Ct. 1371) is more substantial. We believe, however, the circumstances of this case show the arrest was lawfully executed.

A police officer may arrest without warrant in a private dwelling if exigent circumstances exist for such action at the time the arrest is made. (People v. Abney (1980), 81 Ill. 2d 159.) Such circumstances exist in this case. See People v. Bean (1981), 84 Ill. 2d 64.

The record shows Krohn was a suspect in at least two serious offenses, one of which the police knew involved the use of a firearm. Also, a 9-millimeter pistol had been found, hidden in a car in Krohn’s driveway, which was thought to have been used in a recent armed robbery. Although Krohn’s residence had been searched previously by the police on October 12, 1978, this consent search was limited to locating Austin or Thomas, not personal effects such as weapons. In view of all these facts, it was reasonable to believe that at the time Krohn was arrested that he might be armed. Also probable cause to arrest Krohn existed and it was reasonable to believe he was at 309 Park Road since police had left the residence only three hours earlier. Although Krohn displayed no intention to flee, the impracticability of obtaining a warrant in the wee hours of the morning justified the police in proceeding without one. Dorman v. United States (D.C. Cir. 1979), 435 F.2d 385.

Finally, the method of the police’s entry to make the arrest cannot be ignored. The two officers knocked on the door. The defendant answered. He was told he was under arrest. Krohn acquiesced, and admitted the officers into his home while he dressed. Guns were not drawn, nor excessive force threatened. After being allowed to enter the home, the police conducted no warrantless search. In a word, the arrest was made peaceably.

It is not clear from the record where Krohn was standing when he answered the door pursuant to the police officer’s knock. He may have been standing within the house behind a screen door, or in the threshold of the door itself. Under certain circumstances, the latter place has been held to be a public place (United States v. Santana (1976), 427 U.S. 38,49 L. Ed. 2d 300, 96 S. Ct. 2406), and a warrantless arrest upheld in the absence of exigent circumstances. Although adhering to the rule this case enunciates, the location of Krohn, either behind such a door or in the threshold, does not form the basis for our decision here. The record shows an urgent need existed which obviated the requirement that the police obtain an arrest warrant. The arrest was lawfully effectuated. Thus, defendant’s motion to suppress statements made after such arrest was properly denied.

For the reasons stated, the order of the Will County Circuit Court denying defendant’s motion to suppress certain statements made after his arrest is affirmed. Accordingly, the convictions, and sentences imposed, are affirmed.

Affirmed.

ALLOY and STOUDER, JJ„ concur.


author: Mr. JUSTICE ALLOY

text:
      In re J. W., a Minor.—(THE PEOPLE OF THE STATE OF ILLINOIS, Petitioner-Appellee, v. J. W., Respondent-Appellant.)
    Third District
    No. 80-500
    Opinion filed August 14,1981.
    Robert Agostinelli and Michael Filipovic, both of State Appellate Defender’s Office, of Ottawa, and Steven D. Rittenmeyer, of Department of Law Enforcement Administration of Western Illinois University, of Macomb, for appellant.
    James T. Teros, State’s Attorney, of Rock Island (Larry Wechter and Robert J. Biderman, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   Mr. JUSTICE ALLOY

delivered the opinion of the court:

The respondent minor was adjudged delinquent and was committed to the Department of Corrections, Juvenile Division facility at St. Charles. The petition alleged that on July 19, 1980, the minor, J. W., without authority, knowingly entered the residence of Kathryn Simmons in Rock Island with the intent to commit a theft therein, in contravention of section 19 — 1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 19 — 1(a)).

The respondent contends on appeal that he was not proved guilty beyond a reasonable doubt because the only evidence against him consisted of a palm print located on the window sill of the burglarized premises.

The State called five witnesses. Kathryn Simmons testified that she left her home at approximately 2:15 p.m. on July 19, 1980, and returned around 4 p.m., in response to a call from a neighbor. She then discovered an outside basement trap door broken and a screen ripped from a kitchen window. The kitchen window was open. The front door was found unlocked. She testified that, prior to her departure that afternoon, she had locked the doors and closed the windows. Several items were missing from the home. None was introduced into evidence. She testified that her home had been burglarized by unknown persons on three previous occasions, a long time ago. In those previous burglaries, the burglars once broke into the garage, once entered through the front door of the home, and once entered through the kitchen door. She testified that the basement trap door found broken on July 19 did not provide access to the house. That trap door is located beneath the kitchen window. The kitchen window is the only one that can be reached without a ladder. She testified that “quite a few strange people walk through” a parking lot adjacent to her home. However, the house itself is surrounded by a fence. She never granted J. W. permission to enter her home. She does not know him and did not recall having seen him before.

Thomas P. Welch, the other occupant of the house, testified that he had not authorized anyone to enter the house on July 19,1980. He was not acquainted with J. W.

Twelve-year-old Jesse Brown testified that, on July 19, 1980, he observed the Simmons house from the front porch of his own home across the street. He saw an individual walk into the Simmons house through the front door and exit approximately five minutes later, carrying a green-colored sack. He also saw a second person standing on the corner who was looking in both directions. When asked if either of these individuals was in court, Jesse Brown replied, “No.”

Rock Island Police Officer Donald Reichert testified that he dusted the crime scene for latent fingerprints. He dusted the kitchen window from which the screen had been torn and dusted approximately 10 items inside the house, including the inside knob of the front door. He recovered six latent prints, including two palm prints found on the outside kitchen window sill. He described the kitchen window as the “point of entry.” On cross-examination, he testified that prints such as those found could have been left as long as two to four weeks prior to their discovery. The longevity of the prints would depend upon weather conditions, of which he had no specific recollection.

Officer Jack Schowaiter testified that he conducted comparison tests on the prints found by Officer Reichert. He testified that, of six latent prints received from the crime scene, five were usable. Of those five, only a single palm print taken from the outside kitchen window sill matched that of the respondent.

The court judged the respondent guilty, finding that the single palm print was sufficient to show beyond a reasonable doubt that he had entered the Simmons home, without authority, and with the intent of committing a theft therein. The court stated, inter alia,

° * my understanding of the evidence is that the palm print appeared on that area of the window between the screen and where the window was 6 *

The respondent contends that the evidence did not support the specific finding that the palm print appeared between the screen and the window. The testimony of Officer Reichert was that the latent print was found on the outside kitchen window ledge or sill. The State does not specifically deny this contention, but nonetheless argues that the evidence was sufficient to prove the respondent’s guilt beyond a reasonable doubt.

Our supreme court recently passed upon the issue of whether fingerprint evidence alone may be sufficient circumstantial evidence of guilt of the crime of burglary. The case of People v. Rhodes (1981), 85 Ill. 2d 241, 422 N.E.2d 605, was a consolidated judgment reviewing three cases from the appellate court. In the first of these cases, People v. Rhodes, the supreme court affirmed both the trial court and the appellate court. (See People v. Rhodes (1980), 81 Ill. App. 3d 339, 401 N.E.2d 237.) The defendant was convicted of burglary. The only evidence linking him to the crime was the presence of his fingerprint on a piece of glass that had apparently been broken out of the kitchen door of the burglarized residence. This door was located 11 to 12 feet inside a glass-enclosed porch, a window of which had also been broken.

The second of the consolidated cases was People v. Van Zant. In that case, the only evidence linking the defendant to the crime was the presence of his fingerprint on a radio that had been displayed, but not removed from the burglarized premises. No evidence was introduced indicating the age of the fingerprint or the owner’s continuous possession of the radio. In other words, the possibility that the radio had been removed from the premises for a legitimate purpose, during which time the defendant might have impressed his fingerprint upon it, had not been precluded. The appellate court reversed the defendant’s conviction, holding that the circumstantial evidence of guilt was insufficient to have properly survived a motion for directed verdict. (People v. Van Zant (1980), 84 Ill. App. 3d 355, 405 N.E.2d 881.) The supreme court reversed the judgment of the appellate court and reinstated the conviction.

In the third of the consolidated cases, In re P. W., the trial court concluded that the State had proved, by a preponderance of the evidence, that the respondent had committed the crime of burglary. Accordingly, the court revoked respondent’s juvenile probation and committed him to the Department of Corrections. Both the Appellate Court for the Fifth District (82 Ill. App. 3d 1199 (Rule 23 order)) and the supreme court affirmed. The only evidence linking the respondent to the burglary was the presence of his thumb print on a piece of glass that had been broken from a garage window, the point of entry into the burglarized premises. The window was approximately 40 feet from the front sidewalk and the same distance from the back of the lot. Adjacent to the garage is a walkway running from the front to the back of the lot. The garage window which was broken was approximately four feet high, and it faces the walkway. One side of the window was glass; the other side was a screen. The complainant testified that, when she left home, the screen and window were intact, but upon her return the window was broken and the screen was torn. The walkway was accessible to the public. The respondent’s thumbprint was lifted from a shard of glass lying on the ground outside, 16 to 18 inches from the garage. An investigating officer testified that he thought the thumbprint was impressed upon the outside right-hand corner of the window. It was the opinion of the officer that the thumbprint was “fresh,” since it contained oil which the body emits. However, he was unable to say whether the print was impressed the day of the burglary.

In reference to fingerprint evidence, the supreme court stated:

“The issue raised in all three cases is whether the fingerprint evidence introduced in each case is sufficient to establish burglary. The evidence in each case is concededly circumstantial. ‘Circumstantial evidence is the proof of certain facts and circumstances in a given case from which the jury may infer other connected facts which usually and reasonably follow according to the common experience of mankind.’ [Citations.] Circumstantial evidence is generally sufficient to support a conviction if it is inconsistent with any reasonable hypothesis of innocence, but the trier of fact need not search out all possible explanations consistent with innocence and raise them to a level of reasonable doubt. [Citation.] Fingerprint evidence is circumstantial evidence which attempts to connect the defendant to the offense alleged. [Citations.] In order to sustain a conviction solely on fingerprint evidence, fingerprints corresponding to the fingerprints of the defendant must have been found in the immediate vicinity of the crime under such circumstances as to establish beyond a reasonable doubt that the fingerprints were impressed at the time the crime was committed. [Citations.]” People v. Rhodes (1981), 85 Ill. 2d 241, 248-49.

The evidence in the instant cause indicates that a relatively fresh palm print, identified as that of the respondent, was found at the point of entry of the burglarized dwelling. The evidence is ambiguous as to whether the palm print was found outside the place where the screen would have attached to the window prior to being torn, or whether, as the trial judge indicated, the palm print was found between the window and the place where the screen had previously been attached. The window can be reached without a ladder. However, it is located over a basement trap door. It is within a fenced yard and thus not readily accessible to the public. Under the law of this State, as recently announced by our supreme court in People v. Rhodes, the trial judge did not err in finding that the circumstantial evidence of respondent’s involvement in this burglary was proof beyond a reasonble doubt of his guilt. Accordingly, we affirm the conviction.

Affirmed.

BARRY and STOUDER, JJ., concur.


author: Mr. JUSTICE GREEN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHARLES BRADSHAW, Defendant-Appellant.
    Fourth District
    No. 16949
    Opinion filed September 11, 1981.
    Daniel D. Yuhas and Gary R. Peterson, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Thomas J. Difanis, State’s Attorney, of Urbana (Robert J. Biderman and Garry W. Bryan, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   Mr. JUSTICE GREEN

delivered the opinion of the court:

After a trial by jury in the circuit court of Champaign County, defendant was convicted of battery and sentenced to 270 days’ imprisonment. He was acquitted of aggravated assault in the same proceedings. On appeal he contends the court erred in refusing his tendered instruction on self-defense and in denying his motion in limine with reference to his 1977 conviction of assault with a deadly weapon. We affirm.

The charge arose from an incident at Innsbruck Lodge in Champaign County on the evening of September 13, 1980. The undisputed evidence was that at about 5 p.m. on that date defendant’s wife was discharged from her employment at that establishment, and later she and defendant returned to get her paycheck. In some manner defendant got to the second floor of the building where a private party was in progress. The owner of the establishment told defendant to leave, and a struggle ensued before defendant was eventually removed from the building by several people.

The thrust of the State’s case came from the owner of the Innsbruck Lodge who testified: (1) defendant hit him when he asked defendant to leave; (2) the two struggled, and he eventually got on top of defendant; (3) when defendant agreed to leave, he let defendant up; and (4) as they were walking downstairs, defendant jumped on his back, whereupon others escorted defendant from the building. Another witness testified to hearing the owner offer to let defendant up but stated she was not present throughout the episode and did not see defendant hit the owner. Defendant did not testify. His theory that he was entitled to an instruction on self-defense was based on the evidence given by a witness who testified to seeing the owner place a hand on defendant’s shoulder in a reasonably calm manner and ask defendant to go downstairs, whereupon defendant pulled his arm away and the two started arguing. She stated that she then left and when she returned, the owner was pulling defendant toward the stairs.

The self-defense instruction tendered by defendant and refused by the court was Illinois Pattern Jury Instruction, Criminal, No. 24.06 (1968), which states:

“A person is justified in the use of force when and to the extent that he reasonably believes that such conduct is necessary to defend [himself] [another] against the imminent use of unlawful force.”

Although only slight evidence of most affirmative defenses is sufficient to entitle an accused to an instruction on the defense (People v. Kalpak (1957), 10 Ill. 2d 411,140 N.E.2d 726), we do not find such evidence to be present here. The placing of an arm around a person in a reasonably calm manner while telling that person to leave is not such conduct as to cause that person to reasonably believe the use of force is necessary to defend himself. It is notable that under the undisputed evidence, defendant became a trespasser in the upstairs dining room, where a private party was in session, when the owner requested him to leave. The owner then had a right to use reasonable force to terminate the trespass. (Ill. Rev. Stat. 1979, ch. 38, par. 7 — 3.) No evidence presented by either side indicated the owner did more.

Defendant’s motion in limine was made orally. It called the court’s attention to defendant’s prior conviction of the felony of assault with a dangerous weapon. Defense counsel stated that he would have no objection to the jury being told that defendant had been convicted on a prior occasion of a felony. He objected to the name of the offense being presented to the jury, however, because the nature of that offense was very similar to the offense of battery for which he was on trial. As set forth in People v. Montgomery (1971), 47 Ill. 2d 510, 268 N.E.2d 695, proof of a defendant’s prior conviction of a crime, which occurred within a time-frame met here, is admissible to impeach the defendant’s veracity if the court determines that its probative value for impeachment exceeds the prejudice to the defendant that would occur because the trier of fact might improperly consider the evidence to bear upon the defendant’s propensity to commit crime. We held in People v. Guthrie (1978), 60 Ill. App. 3d 293, 376 N.E.2d 425, that evidence of a defendant’s conviction of felonies not directly related to dishonesty has some probative value to impeach the defendant’s veracity. However, in People v. Ridley (1975), 25 Ill. App. 3d 596, 323 N.E.2d 577, the court recognized that prejudice to a defendant arising from proof of his prior conviction of crime is greatest when the impeaching offense is the same as the one for which he is on trial. Although affirming the conviction where this had occurred, the court said that impeachment by showing conviction of the offense for which the defendant was on trial should be permitted only infrequently, citing Gordon v. United States (D. C. Cir. 1967), 383 F.2d 936. The charged and impeaching offense in Ridley was armed robbery.

Here, the offense with which defendant was charged and the impeaching offense were not the same but were very similar. Had the jury merely been informed that defendant had been convicted of a felony, the jury would not have known of the similarity of the offenses and would have been less likely to improperly consider the prior conviction as bearing on defendant’s propensity to commit the battery charged. The defendant’s theory has some attraction as a method of permitting probative impeachment while minimizing the chance the evidence will be improperly considered against the defendant.

• On the other hand, as the impeaching value of a prior conviction depends to some extent upon the degree to which the offense shows the defendant’s “previous disrespect for societal orders” (see People v. Wright (1977), 51 Ill. App. 3d 461, 466, 366 N.E.2d 1058, 1063, Reardon, J., specially concurring, Kunce, J., dissenting), some probative value exists in permitting the trier of fact to know the nature of the impeaching offense even though the offense does not bear directly upon dishonesty.

Although the trial court could have resolved the conflicting interests of the parties here by denying proof of the assault with a deadly weapon conviction if the defendant would agree to the jury being informed that he had been convicted of a prior nameless felony, the trial court was not required to do so. It could have considered the nature of the impeaching offense to have had sufficient impeaching value to justify its being presented to the jury.

To the extent defendant’s claim of error in regard to denial of the motion in limine is based upon a theory that the trial judge did not perform the Montgomery balancing function, we disagree. At the hearing on the motion in limine defense counsel discussed Montgomery and explained to the court as to the discretion which the court had.

For the reasons stated, we affirm.

Affirmed.

TRAPP, P. J., and WEBBER, J., concur.


author: Mr. JUSTICE UNVERZAGT

text:
    FRANK G. DROGOS et al., Plaintiffs-Appellees, v. THE VILLAGE OF BENSENVILLE, Defendant-Appellant.
    Second District
    No. 80-622
    Opinion filed June 3,1981.
    Modified on denial of rehearing October 8,1981.

      Ray F. Fick, Jr., and George P. Harris, both of McNeill, McElroy, Fick & Singer, of Chicago, for appellant.
    Daniel L. Houlihan, William J. Hennessy, and James F. Stack, all of Chicago, for appellees.
   Mr. JUSTICE UNVERZAGT

delivered the opinion of the court:

This appeal arises from an order of the circuit court of Du Page County which declared that the zoning ordinance of the defendant, village of Bensenville, was unconstitutional insofar as it applied to plaintiffs’ property. In ordering the village of Bensenville to issue building permits for the erection of a proposed gasoline filling station on the subject property, the trial court determined that the R-3 single-family residence classification of the Bensenville zoning ordinance was an arbitrary and unreasonable exercise of legislative power with respect to plaintiffs’ property. On appeal, the village of Bensenville urges that the presumptive validity of the village zoning ordinance must be upheld because the plaintiffs did not sustain their burden of proving by clear and convincing evidence that the zoning classification is arbitrary, capricious, and bears no relationship to the public safety, morals and welfare. We reverse.

The subject property is located at the southwest corner of Route 83 and Foster Avenue and is improved with a five-room single-family residence, a 2&-car garage, and an asphalt paved driveway with egress only to the southbound lanes of Route 83. The house and garage are both oriented to the east, facing Route 83. The property contains 20,400 square feet with a frontage of 130 feet on route 83 and 157 feet on Foster Avenue. The Drogoses purchased the property in 1965 for $22,500, with knowledge that the property was zoned R-3, single-family residential. At that time, the real estate broker noted that it was a possible site for a service station in the future, and that was one of the reasons the Drogoses bought the property. In 1977, the Drogoses leased the property to Shell Oil Company for a 10-year term subject to the procurement of a zoning classification which would allow the construction of a gas station. Thereafter, the Drogoses applied to the village of Bensenville for a reclassification of the property to a B-3 restricted service business district which would permit the desired use. Following a public hearing before the zoning board of appeals and that board’s recommendation to deny the petition, the Bensenville Board of Trustees denied the rezoning request, and this declaratory judgment action followed.

At the hearing on the cause, Frank Drogos testified that at the time he bought the property, Route 83 was a two-lane roadway with no traffic signal at its intersection with Foster, and there was a 100-foot parkway between his east property line and Route 83. Route 83 has since been widened to three southbound lanes and three northbound lanes, divided by a median strip, with separate left-turn-only lanes for east and westbound traffic onto Foster. Traffic signals are now present at the intersection, and the Drogoses’ parkway has been reduced to about 55 feet in depth. Drogos testified that the accelerating and decelerating cars and trucks at the signalized intersection cause a great deal of noise now, that the privacy of his property has been significantly diminished and that his wife is subject to “cat calls” when she is working in the garden. He also testified he can no longer turn left from his driveway to go north due to the median strip on Route 83. Instead, he must go south three blocks, then west one block, north three blocks, and then east one block in order to be able to turn north onto Route 83. In 1965 Foster Avenue was an unimproved roadway which only extended one block east of Route 83. Foster Avenue is now a paved two-lane road which extends eastward to York Road, with separate left-turn-only lanes for traffic which is north or southbound onto Route 83.

Joseph Zgonina, a registered professional engineer with expertise in the field of traffic engineering, testified that Foster Avenue has an average daily traffic volume of 4,900 cars west of Route 83 and 10,500 cars east of Route 83. Route 83 has a volume of 50,000 cars per day. He stated that Route 83 is designated as a through-traffic arterial according to the Chicago Area Transportation Study, and Foster Avenue is classified as a collector arterial on the Du Page County Highway Plan and the Chicago Area Transportation Plan. Zgonina testified that Foster Avenue extends westward approximately lii miles to another major north-south collector arterial, Wood Dale Road. Midway between Foster Avenue and Wood Dale Road is Central Street, another collector arterial which has prominence due to the fact that it enters an industrial park to the north and carries large volumes of through-traffic from that industrial area south on Central, east on Foster Avenue, and then south on Route 83. He noted the signalized intersection at Route 83 generated a large volume of noise due to the generally heavy traffic usage and the turning movements in the intersection. The considerable amount of noise is caused primarily by the trucks which must gear down to stop and gear up again to proceed. Zgonina testified there is a problem with the property as it presently exists in terms of safe and efficient access. He testified that the proposed gas station design would eliminate sight restrictions at the intersection providing a clear view across the corner. Further, a gas station is a highway-oriented use, and does not cause increased traffic volume since it attracts its customers from the existing traffic volume on the roadway. He recommended modifying the proposed gas station site plan by eliminating one of the two proposed curb cuts on Foster Avenue, leaving only the westerly one and the two fronting on Route 83, and Shell Oil Company had agreed it would implement this recommendation if the rezoning were granted.

The area surrounding the Drogoses’ property in the southwest quadrant of Route 83 and Foster is predominantly single-family residential; however, the other three corners of the intersection' are currently utilized for various business and quasi-public uses. The northwest corner of Foster and Route 83 is zoned B-3 restricted service business and is improved with a Clark Oil Company gas station. The lot immediately west of this filling station is zoned B-4 general service business district and is improved with a large church and parking lot. The area to the north of and adjacent to the Clark station is zoned B-4 general service business, but is vacant. The southeast corner of the intersection was rezoned within the past several years to B-l retail business district, and is improved with a restaurant. Testimony indicated that the restaurant has a separate parking area for trucks, and the restaurant and its adjacent auto and truck parking areas immediately abut an R-3 single-family residence district, which area continues south to Irving Park Road. This R-3 zone is immediately abutted on the east by a M-1A office, engineering and research laboratory zone and, to the east of that, an M-l limited manufacturing zone, almost all of which zones are currently developed accordingly. The northeast corner of the intersection is zoned R-3 single-family residence district, and is improved with a large church. Two recently constructed office buildings are located north of and adjacent to the church in an area zoned B-l retail business which extends north to Fairway Drive. This B-l zone is abutted on the east by a large M-l limited manufacturing zone, most of which is developed as such.

Mr. William McCann, a real estate appraiser and broker, testified as a valuation witness on behalf of plaintiffs. He stated that the value of the property as presently utilized would not exceed $60,000 whereas the property would be worth approximately $120,000 if it were developed as a gas station. McCann also concluded that the construction of a gas station on the subject site would have a minimal impact on the value of adjacent residences. His opinion was based on the fact the proposed construction would include a “green belt,” a landscaped area with a six-foot fence, separating the gas station from the single-family residences on the west and the south of the subject property, and on the fact there has already been a depreciation in the value of these residences due to the upgrading of Route 83 and Foster Avenue, and on the fact that there is an industrial and business “trend” in this area. This trend is evidenced by the Clark Gas Station, which was rebuilt in approximately 1972 to replace an older gas station, the recent rezoning of the southeast corner to allow construction of the restaurant/truck stop, and the new office buildings located north of the church on the northeast corner. He noted the homes adjacent to the subject property on the south do not front on Route 83 but, rather, face a small side street and derive their residential character therefrom. In contrast, the subject property directly faces Route 83 and derives its character from that major roadway. .

Mr. William Lawrence, a city planning and zoning consultant, also testified on behalf of the plaintiffs. Mr. Lawrence testified the highest and best use of the property would be for restricted service business which would include a gas station. He based that opinion on the fact that the subject site is located opposite a gasoline station on the north side of Foster, and opposite a restaurant zoned B-l on the east side of Route 83. The unique location of the property at the intersection of Route 83 and Foster makes the subject site particularly suitable for the proposed gas station use. He stated that he believed proper landscaping and fencing would render the proposed use nonharmful to the residences adjoining the subject site. Although roadways often provide natural demarcation for different districts, he noted that Route 83 does not serve as such a boundary in this instance.

Thomas Collins, a real estate appraiser and broker, testified on behalf of the defendant. He concluded that the value of the subject site was $75,000, taking into consideration that it is a large enough parcel to provide a second buildable lot. He testified the value would increase to $120,000 under the proposed gas station use. He estimated that the proposed use would result in approximately a V)% depreciation in the value of adjacent residences, and that the proposed landscaping buffer would have a limited mitigating effect on this depreciation because the property is too small a parcel to permit effective screening. Collins concluded that the highest and best use of the subject property is as it exists. He based this opinion on the size of the property, the road frontage, the access to Foster Avenue, and the location of the property as a part of a solid residential neighborhood.

Three homeowners who reside adjacent to the subject site on the west and the south also testified on behalf of the defendant. They uniformly stated that the proposed use would have a harmful effect on the use and enjoyment of their property due to the increase in noise, as well as the presence of gas fumes and the glare of headlights from automobiles utilizing the gas station during the night. All three stated they felt traffic conditions on Route 83 had generally improved since the widening and signalization, and that there is less noise because traffic flow is better and there are fewer accidents because the road is safer. Two of them testified they would oppose any change whatsoever in the use of the property.

The village of Bensenville urges that plaintiffs have failed to overcome the presumptive validity of the village’s zoning ordinance. It is well settled that a presumption exists in favor of the validity of a zoning ordinance, and the burden of proving its invalidity falls on the one who attacks the ordinance. (La Salle National Bank v. City of Evanston (1974), 57 Ill. 2d 415, 428.) To overcome this presumption, the challenging party must establish by clear and convincing evidence that, as applied to their property, the ordinance is arbitrary and unreasonable, and without substantial relation to the public health, safety, comfort, morals or general welfare. (57 Ill. 2d 415, 428; Tomasek v. City of Des Plaines (1976), 64 Ill. 2d 172, 179-80.) The testing of the validity of the zoning ordinance as it applies to the plaintiffs’ property is not conducted academically, however; it is tested pursuant to the reality of the application of the specific use proposed to the property in question. Plaintiff bears the burden of proving by clear and convincing evidence that the zoning ordinance is unreasonable insofar as it excludes that specific use. In other words, the plaintiff must prove by clear and convincing evidence that the use proposed is reasonable. Schultz v. Village of Lisle (1972), 53 Ill. 2d 39; Amalgamated Trust & Savings Bank v. County of Cook (1980), 82 Ill. App. 3d 370; La Salle National Bank v. County of Du Page (1979), 77 Ill. App. 3d 562, 568.

Citing Gulf Oil Corp. v. County of Du Page (1975), 24 Ill. App. 3d 954, 958, the village urges that the overriding consideration in zoning cases is whether the presumptive validity of the ordinance has been overcome and there is, therefore, a dimension of proof not required in most nonzoning litigation. It further urges, therefore, that the rule that a trial court’s findings will not be disturbed on review unless they are against the manifest weight of the evidence does not always have the same force in zoning cases that it does in other litigation. Although we agree that zoning cases require a stricter degree of proof than most nonzoning cases, the village has not cited any authority — nor have we discovered any — which requires a standard on review stricter than “the manifest weight of the evidence.” It has been held that the standard for review of zoning cases, as in other cases, is that the findings of the trial court will not be disturbed unless against the manifest weight of the evidence. (Pioneer Trust & Savings Bank v. County of Cook (1978), 71 Ill. 2d 510, 516-17; La Salle National Bank v. County of Cook (1957), 12 Ill. 2d 40, 48.) Further, a mere conflict of testimony does not create an irrebuttable presumption that an ordinance is valid or require a finding that the reasonableness of the ordinance is debatable; such conflicts go to the credibility of witnesses and the weight to be afforded their testimony. These are matters to be determined by the trier of fact, subject to reversal only when against the manifest weight of the evidence. (Bass v. City of Joliet (1973), 10 Ill. App. 3d 860, 870.) “[Cjlear and convincing evidence is considered to be more than a preponderance while not quite approaching the degree of proof necessary to convict a person of a criminal offense.” (In re Estate of Ragen (1979), 79 Ill. App. 3d 8, 14.) “The manifest weight of the evidence is that which is ‘the clearly evident, plain and indisputable weight of the evidence.’ [Citations.] In order for a finding to be contrary to the manifest weight of the evidence, an opposite conclusion must be clearly apparent. [Citation.]” In re Application of County Collector (1978), 59 Ill. App. 3d 494, 499.

The court in La Salle National Bank v. County of Cook (1957), 12 Ill. 2d 40, 46-47 summarized the facts to be considered in determining the validity of a zoning ordinance: (1) the existing uses and zoning of nearby property; (2) the extent to which property values are diminished by the particular zoning restrictions; (3) the extent to which the destruction of property values of plaintiff promotes the health, safety, morals or general welfare of the public; (4) the relative gain to the public as compared to the hardship imposed upon the individual property owner; (5) the suitability of the subject property for the zoned purposes, and (6) the length of time the property has been vacant as zoned considered in the context of land development in the area of the vicinity of the subject property. (Accord, Tomasek v. City of Des Plaines (1976), 64 Ill. 2d 172, 180-81.) Two additional facts to be considered in determining the validity of a zoning ordinance are: (1) the care with which the community has undertaken to plan its land use development, and (2) the evidence or lack of evidence of community need for the use proposed by the plaintiff. (See Sinclair Pipe Line Co. v. Richton Park (1960), 19 Ill. 2d 370, 378; Pioneer Trust & Savings Bank v. County of McHenry (1968), 41 Ill. 2d 77, 86-87; Hoffmann v. City of Waukegan (1964), 51 Ill. App. 2d 241, 244; DeMarie v. City of Lake Forest (1981), 93 Ill. App. 3d 357, 361.). As a general rule, no single factor is controlling (Ritter v. Village of Morton Grove (1979), 70 Ill. App. 3d 640); the validity of each zoning ordinance must be determined by its own facts and circumstances. La Salle National Bank v. County of Cook (1957), 12 Ill. 2d 40, 46.

In assessing the facts relative to the validity of the ordinance, we are mindful that plaintiffs purchased the property with knowledge of the zoning restrictions. Although such a circumstance should not be ignored (Gulf Oil Corporation v. County of Du Page (1975), 24 Ill. App. 3d 954, 958; La Salle National Bank v. City of Evanston (1974), 57 Ill. 2d 415,430), it is evident the Drogoses purchased the property primarily to be their residence and they lived there for 12 years before they entered into the lease with Shell Oil Company. We observe that consideration of the potential resale value of a piece of property at the time of purchase is a usual incident thereto. The existing uses and zoning of nearby property have been detailed above, and need not be repeated here in the course of our analysis of the eight relevant factors.

The current zoning results in a diminishment of plaintiffs’ property value of between $45,000 and $60,000. Retention of the current zoning would benefit surrounding property owners in that the plaintiffs’ property would continue to act as a buffer between Route 83 and Foster Avenue and the properties adjacent to the south and to the west.

Residences to the west and to the south are built on approximately 50 by 130-foot lots and were valued at $80,000 and $70,000 respectively. Plaintiffs’ property, 157 feet by 130 feet — large enough for three buildable lots — was valued by the defendant’s witness, Thomas Collins, at $75,000. Plaintiffs’ witness, William McCann, testified the adjacent residences had already depreciated as the result of the Clark Gas Station, the restaurant/truck stop, the office buildings north of the church on the northeast corner of the intersection and the general industrial trend in the area. Assuming development of the property as proposed, McCann testified any further depreciation would be minimal, whereas Collins determined there would be a 10-percent depreciation in the value of these adjacent homes.

The property was described as a “unique” site for the use proposed, due to its location at one of the few signalized intersections on Route 83 and in terms of traffic volume and the fact the next gas station to the south is about 4/2 miles away and to the north — excluding the Clark station— almost two miles away. Additionally, there was testimony regarding the State’s plan to construct the Elgin-O’Hare Expressway and the fact that a major interchange will be located one-half mile north of the subject property at Thorndale. The signal at Foster is the first stop light south of the proposed interchange. There was testimony that no “domino” effect as the result of a rezoning of the property would be expected, since no other parcel to the south of the subject property on either the east or west side of Route 83 is as uniquely suited for the use proposed. In addition, Mr. Drogos testified about the unfavorable aspects of living in proximity to a major roadway. Further, Collins admitted on cross-examination that the subject property would be the least desirable homesite in the neighborhood.

With regard to land development in the area, Drogos testified one home had been built within the past three years at the southeast corner of Spruce and Foster (Spruce is the first north-south street west of Route 83), and that a great deal of the homes in the neighborhood were already constructed when he purchased his home in 1965. As previously noted, the Clark Gas Station was built to replace a previous gas station, and the vacant residential parcel at the southeast corner of Route 83 and Foster was rezoned and a restaurant/truck stop was built in about 1977. A large industrial park now exists on the east side of Route 83 extending north and southward on land that in 1965 was the site of the Mohawk Country Club. No evidence of a comprehensive zoning plan for the village of Bensenville was received. The construction of the Clark station is indicative of a reaffirmation of the business character of that property. The rezoning and construction of the restaurant/truck stop and the construction of the two office buildings in the B-l district to the north of the church on the northeast corner of Route 83 and Foster, both of which business uses immediately abut R-3 single-family residence districts, belie the existence of a policy to provide buffer areas between residential and more intense uses, or a policy of using main thoroughfares as natural boundaries.

A “community need” for the proposed use could be inferred from the evidence of the relative scarcity of stations in the vicinity, notwithstanding the Clark station across the street. We note there was no evidence whether the Clark facility was self-service, which is the type proposed by Shell for the subject property. An additional consideration in this regard is the future construction of the Elgin-O’Hare Expressway and the increased traffic volume that may be generated from that facility southbound onto Route 83.

Considering all of these factors, we believe the zoning as generally applied to the property is invalid. We hasten to add, however, that the finding of invalidity does not compel us to permit use of the property for the proposed gas station. Such relief is available only if the plaintiffs have also proven by clear and convincing evidence that the proposed use is reasonable. (La Salle National Bank v. County of Du Page (1979), 77 Ill. App. 3d 562, 567-68.) We do not believe plaintiffs have met this burden.

There was testimony that a six-foot high fence would be erected on the south and west boundaries of the subject property and that by virtue of the landscaped “green belt,” the closest any vehicles patronizing the station would come to adjacent residences would be 25 feet. The record indicated the gas station’s hours of operation would at least be competitive with the Clark station — though there was no evidence offered as to that station’s hours of operation — and quite possibly the proposed station would be open 18 or 24 hours a day. There was no evidence concerning the restaurant/truck stop hours of operation. Although the station would not market diesel fuel for automobiles, and the Shell representative testified that trucks can obtain more reasonable prices at stations other than Shell, trucks would not be excluded from using the gas station. Although lighting for the proposed station is relatively low-level and is located under the canopy covering the self-service pumps, the site plan indicates the bottom of the canopy is 12 feet from the ground.

In sum, we do not believe plaintiffs have clearly and convincingly shown that rezoning to permit the proposed gas station use would be reasonable, and would not cause a severe disruption to the residential quality of the neighborhood, particularly during the dusk-to-dawn hours. It cannot seriously be maintained that the operation of an 18- or 24-hour self-service gas station that does not exclude trucks within 25 feet of an established residential neighborhood will not adversely affect the quality of life and general welfare of that neighborhood. We conclude that the trial court’s finding that plaintiffs’ proposed plan of development would be compatible and reasonable in its application to the subject property was against the manifest weight of the evidence, and we reverse.

The judgment of the circuit court of Du Page County is reversed.

Judgment reversed.

SEIDENFELD, P. J, and LINDBERG, J., concur.