{ "id": 3639909, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN SERGEY, Defendant-Appellant", "name_abbreviation": "People v. Sergey", "decision_date": "1985-11-04", "docket_number": "No. 2-84-0302", "first_page": "971", "last_page": "978", "citations": [ { "type": "official", "cite": "137 Ill. App. 3d 971" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "290 N.E.2d 307", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "8 Ill. App. 3d 725", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2766877 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/8/0725-01" ] }, { "cite": "419 N.E.2d 1240", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "95 Ill. App. 3d 283", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3117898 ], "year": 1972, "pin_cites": [ { "page": "287-88" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/95/0283-01" ] }, { "cite": "355 N.E.2d 142", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "41 Ill. App. 3d 902", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2487516 ], "pin_cites": [ { "page": "905-06" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/41/0902-01" ] }, { "cite": "459 N.E.2d 1357", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "99 Ill. 2d 467", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3163237 ], "pin_cites": [ { "page": "471" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/99/0467-01" ] }, { "cite": "473 N.E.2d 89", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "129 Ill. App. 3d 724", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3489400 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/129/0724-01" ] }, { "cite": "461 N.E.2d 463", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "122 Ill. App. 3d 272", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3522368 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/ill-app-3d/122/0272-01" ] }, { "cite": "318 N.E.2d 756", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "23 Ill. App. 3d 492", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2505938 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/ill-app-3d/23/0492-01" ] }, { "cite": "307 N.E.2d 159", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "16 Ill. App. 3d 819", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2524260 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/ill-app-3d/16/0819-01" ] }, { "cite": "66 Ill. 2d 627", "category": "reporters:state", "reporter": "Ill. 2d", "opinion_index": 0 }, { "cite": "359 N.E.2d 1194", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "45 Ill. App. 3d 643", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2896152 ], "year": 1977, "pin_cites": [ { "page": "648" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/45/0643-01" ] }, { "cite": "451 N.E.2d 988", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "116 Ill. App. 3d 51", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3519592 ], "year": 1977, "pin_cites": [ { "page": "56-57" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/116/0051-01" ] }, { "cite": "85 Ill. 2d 573", "category": "reporters:state", "reporter": "Ill. 2d", "year": 1983, "opinion_index": 0 }, { "cite": "423 N.E.2d 1185", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "97 Ill. App. 3d 1005", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3110796 ], "year": 1982, "pin_cites": [ { "page": "1012" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/97/1005-01" ] }, { "cite": "374 Ill. 87", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2531837 ], "year": 1981, "pin_cites": [ { "page": "89" } ], "opinion_index": 0, "case_paths": [ "/ill/374/0087-01" ] }, { "cite": "5 Ill. 495", "category": "reporters:state", "reporter": "Ill.", "weight": 2, "pin_cites": [ { "page": "496" } ], "opinion_index": 0 }, { "cite": "419 N.E.2d 578", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "94 Ill. App. 3d 915", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3123286 ], "year": 1985, "pin_cites": [ { "page": "932" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/94/0915-01" ] }, { "cite": "326 N.E.2d 74", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "26 Ill. App. 3d 971", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2788107 ], "pin_cites": [ { "page": "983" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/26/0971-01" ] }, { "cite": "91 Ill. 2d 567", "category": "reporters:state", "reporter": "Ill. 2d", "year": 1975, "opinion_index": 0 }, { "cite": "434 N.E.2d 482", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "105 Ill. App. 3d 572", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5469157 ], "year": 1982, "pin_cites": [ { "page": "574-75" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/105/0572-01" ] }, { "cite": "370 N.E.2d 271", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "54 Ill. App. 3d 910", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3398605 ], "year": 1982, "pin_cites": [ { "page": "916" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/54/0910-01" ] } ], "analysis": { "cardinality": 836, "char_count": 15471, "ocr_confidence": 0.761, "pagerank": { "raw": 1.7116428411312128e-07, "percentile": 0.7024907629749843 }, "sha256": "47d1aa46b67c6efa91812aa109ae0b0ec7f9f9c59edda2582798e7a4e5604588", "simhash": "1:b2030097bfc68eed", "word_count": 2639 }, "last_updated": "2023-07-14T17:48:08.242422+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN SERGEY, Defendant-Appellant." ], "opinions": [ { "text": "PRESIDING JUSTICE NASH\ndelivered the opinion of the court:\nAfter a bench trial defendant, John Sergey, was convicted of possessing a motor vehicle knowing it to have been stolen or converted (Ill. Rev. Stat. 1983, ch. 95 1/2, par. 4 \u2014 103(a)(1)) and driving under the influence of alcohol (Ill. Rev. Stat. 1983, ch. 95 1/2, par. 11 \u2014 501(a)(2)). He was sentenced to 18 months\u2019 probation conditioned on serving six months in jail for the first offense and one year of probation conditioned upon serving three months in jail for the latter offense, the sentence to be concurrent.\nOn appeal defendant contends: (1) the State failed to prove him guilty of possessing a motor vehicle knowing it to have been stolen or converted; (2) he was denied a fair trial because the court barred him from testifying about his intent when he possessed the car; and (3) the driving under the influence of alcohol charge was void for its failure to apprise defendant with particularity of the specific offense with which he was charged.\nOn September 18, 1983, defendant finished work at 6 p.m. at Carol Stream Amusements, where he had been working and residing for two weeks. He then began drinking beer with 10 other employees until approximately 1 a.m., when he decided to hitchhike to a tavern to buy more beer and then return. At that point, Sergey had consumed more than a 12-pack of beer.\nCarol Stream Amusements, which is owned by Tim Magrid, sits on 18 acres of farmland and is used to store cars, trucks and carnival equipment. On September 18, there were 30 to 50 cars scattered about the premises; most of the vehicles were owned by Tim Magrid and most had keys in the ignition. The Mint Car Company, a car lot owned by Richard Schoenneman, is located \u201con the same property\u201d as Carol Stream Amusements. Some of the cars owned by Schoenneman were parked among vehicles owned by Magrid.\nDefendant testified he saw a 1977 Oldsmobile Cutlass with its keys in the ignition when he left to get more beer. Assuming it belonged to Magrid and believing Magrid would not mind if defendant borrowed it, Sergey drove the vehicle to a tavern where he stayed for 20 minutes and had a couple of beers before leaving with two 12-packs of beer. He then headed back to Carol Stream Amusements, but was stopped by police and arrested.\nOfficer Patrick Dempsey testified he observed the defendant speeding and weaving from one traffic lane to another at 2:50 a.m. Dempsey activated his emergency lights, but defendant ignored the police car until he was \u201cedged over\u201d by Dempsey and a police officer who had joined the pursuit. The officers testified that defendant stumbled, swayed, twice fell back against the Oldsmobile and smelled of alcohol. Defendant was arrested for \u201cdriving under the influence of alcohol\u201d under \u201c11 \u2014 501(a)\u201d and taken to the Roselle police station. At the station, defendant refused to take a breathalyzer test. All of the officers testified defendant could have reached Carol Stream on the route he was driving.\nAfter the State had called two witnesses, but prior to the end of its case, the prosecution successfully moved over defense objection to amend the traffic ticket by adding subsection \u201c(2)\u201d to the statutory citation of \u201c11 \u2014 501(a).\u201d The court found the amendment did not surprise or prejudice defendant and that it cured what was only a formal defect.\nAt trial, defendant was not allowed to testify as to whether he knew the car was stolen or converted. However, he was allowed to testify that he had believed the Oldsmobile belonged to his employer; that he decided to borrow it; that he intended to return the vehicle after he purchased beer; that he did not have the intent to permanently deprive Richard Schoenneman or anyone else of the use and benefit of the car; that he believed his employer would not mind him borrowing the car for a short time because they \u201cgot along pretty good.\u201d\nDefendant\u2019s claim that Magrid would have allowed him to use a vehicle was unrebutted. Also, it was stipulated that Richard Schoenneman would have testified that he was the owner of the vehicle, that it was worth more than $300 and that he later recovered the vehicle.\nThe court found defendant not guilty of theft because the State failed to prove intent to deprive the owner permanently of the car, for the evidence showed defendant was returning to Carol Stream Amusements with more beer when the police arrested him. Defendant was found guilty of driving under the influence of alcohol and of an offense charged which was premised upon his unauthorized possession of a car which he knowingly converted to his own use. Ill. Rev. Stat. 1983, ch. 95^/2, par. 4-103(a)(l).\nDefendant\u2019s first claim of error is based on the court\u2019s finding that defendant knowingly \u201cconverted\u201d the car when he used it to drive to a tavern to purchase beer. Section 4 \u2014 103 of the Illinois. Vehicle Code states in relevant part:\n\u201cOffenses relating to motor vehicles and other vehicles\u2014 Felonies, (a) It is a violation of this Chapter for:\n(1) A person not entitled to the possession of a vehicle or part to receive, possess, conceal, sell or dispose of it, knowing it to have been stolen or converted ***.\u201d Ill. Rev. Stat. 1983, ch. 95 1/2, par. 4 \u2014 103(a)(1).\nDefendant first argues his use of the car, although without express authorization, insufficiently interfered with the owner\u2019s rights to constitute conversion. Second, defendant contends that, given the nature of his use and his reasonable belief that he was merely borrowing his employer\u2019s car, he could not have known his conduct constituted conversion; therefore, a knowing conversion was not proved.\nIn considering these arguments, we must first determine what the term \u201cconverted\u201d means in section 4 \u2014 103(a)(1). The Illinois Vehicle Code does not define the term, and no court has yet interpreted it. Therefore; it is appropriate to consult the common law in the absence of a clear-statutory meaning. (Smith v. Roberts (1977), 54 Ill. App. 3d 910, 916, 370 N.E.2d 271.) Words having well-defined common law meanings are interpreted to have the same meanings when used in statutes dealing with similar subject matter. Balmes v. Hiab-Foco, A.B. (1982), 105 Ill. App. 3d 572, 574-75, 434 N.E.2d 482, appeal denied (1982), 91 Ill. 2d 567; Scott v. Dreis & Krump Manufacturing Co. (1975), 26 Ill. App. 3d 971, 983, 326 N.E.2d 74.\nIllinois case law generally defines civil conversion of a chattel as an unauthorized and wrongful assumption of the right to possession or ownership in the property which deprives the owner of his rights as owner. (Jensen v. Chicago & Western Indiana R.R. Co. (1981), 94 Ill. App. 3d 915, 932, 419 N.E.2d 578; Daniels v. Powell (N.D. Ill. 1985), 604 E Supp. 689, 696.) The measure of damages for conversion is the full value of the chattel, so the tort of conversion is usually confined to those major interferences with a chattel or the owner's rights therein which are so egregious as to merit what is, in essence, a forced judicial sale of the property. (Prosser & Keeton, The Law of Torts sec. 15, at 90 (5th ed. 1984); Restatement (Second) of Torts sec. 222A, and comments a and b thereto (1965); LaFave & Scott, Criminal Law sec. 89, at 645 (1972).) Both the Restatement and Prosser and Keeton\u2019s text agree that a brief unauthorized use of a car left undamaged by the defendant, such as his driving it only 10 miles, as opposed to a trip of hundreds of miles, should not be held to be a conversion. Restatement (Second) of Torts sec. 222A, comment d, illus. 21, at 435 (1965); Prosser & Keeton, The Law of Torts sec. 15, at 95-96, 101 (5th ed. 1984).\nIllinois approved the modern law of conversion in Johnson v. Weedman (1843), 5 Ill. 495. There, plaintiff left his horse with the defendant for feeding and pasturing for a fee. While in his possession, defendant rode the horse 15 miles without plaintiff\u2019s permission. Although the horse died three hours later, the parties agreed the ride did not cause the death. On appeal defendant\u2019s attorney, A. Lincoln, ably argued that \u201c[t]he riding of the horse was not such an abuse of the lawful possession as amounts to a conversion.\u201d (5 Ill. 495, 496.) The supreme court accepted this argument and affirmed the trial court\u2019s not-guilty verdict, concluding that the defendant\u2019s mere temporary use of plaintiff\u2019s horse without harm resulting from that use was insufficient to constitute conversion.\nIn the instant case there was not proof of damage to the car and the owner did recover it. Also, defendant had no intent to permanently deprive the owner, and it is unrefuted that the defendant\u2019s employer, whom defendant believed was the owner, would have given him permission to use the vehicle had he owned it. And, as was true of the defendant in Johnson v. Weedman, defendant here only temporarily used the property without causing any harm to it. Based on these facts and the foregoing analysis of the nature of the tort of conversion, we cannot say that the legislature intended to punish conduct such as the defendant engaged in. Otherwise, every act of borrowing a friend\u2019s chattel without his express permission at that time would constitute a criminal conversion. Accordingly, we hold the defendant did not violate section 4 \u2014 103 of the Illinois Vehicle Code and reverse his conviction thereon.\nDefendant next complains he was denied a fair trial by the trial court when he was not allowed to answer the following question posed by his attorney: \u201cDid you know the car was stolen or converted?\u201d Though we need not address this contention in view of our disposition of the first issue presented, we note briefly that this claim is meritless.\nIn criminal cases where the intention, motive, or belief of the defendant is material to the issue of guilt, a defendant has a right to testify directly to that fact. (People v. Biella (1940), 374 Ill. 87, 89, 28 N.E.2d Ill; People v. Suerth (1981), 97 Ill. App. 3d 1005, 1012, 423 N.E.2d 1185, appeal denied (1982), 85 Ill. 2d 573.) But where sufficient evidence supporting the defense is nevertheless presented at some point during the trial, although defendant was not allowed to testify directly as to his state of mind, then any error must be considered harmless. People v. Owens (1983), 116 Ill. App. 3d 51, 56-57, 451 N.E.2d 988; People v. Limas (1977), 45 Ill. App. 3d 643, 648, 359 N.E.2d 1194, appeal denied (1977), 66 Ill. 2d 627.\nIt is quite apparent from defendant\u2019s testimony as a whole that his defense was adequately presented. He was allowed to testify that he had believed the car belonged to his employer, that he only borrowed it believing his employer would not object, that he had no intent to permanently deprive anyone of the car, and that he was unaware of any possibility that the car was owned by someone other than his employer. Thus, defendant was clearly not denied a fair trial by the court\u2019s bar of his response to the question of knowing theft or conversion.\nDefendant\u2019s final challenge is based on the State\u2019s amendment of the traffic ticket by adding subsection (2) to the statutory citation. Defendant argues that the amendment was improper, as it did not cure only a formal defect; instead, the charge was substantively defective and void because it failed to specifically apprise him whether he was charged with a violation of subsection (1) or of subsection (2) of section 11 \u2014 501(a). That section provides:\n\u201cDriving while under the influence of alcohol, other drug, or combination thereof, (a) A person shall not drive or be in actual physical control of any vehicle within this State while:\n1. The alcohol concentration in such person\u2019s blood or breath is 0.10 or more based on the definition of blood and breath units in section 11 \u2014 501.2;\n2. Under the influence of alcohol;\n3. Under the influence of any other drug or combination of drugs to a degree which renders such person incapable of safely driving; or\n4. Under the combined influence of alcohol and any other drug or drugs to a degree which renders such person incapable of safely driving.\u201d (Ill. Rev. Stat. 1983, ch. 95 1/2, par. 11 \u2014 501(a).)\nThough defendant fails to raise the issue, we note at the outset that this case presents us with a question quite different from those cases where an individual is charged only with \u201cdriving under the influence of liquor or drugs\u201d and the court is required to reverse the conviction on grounds of uncertainty. (See People v. Johnson (1974), 16 Ill. App. 3d 819, 307 N.E.2d 159; People v. Featherstone (1974), 23 Ill. App. 3d 492, 318 N.E.2d 756; People v. Utt (1983), 122 Ill. App. 3d 272, 461 N.E.2d 463.) The problem here is more similar to that presented in People v. Atwell (1984), 129 Ill. App. 3d 724, 473 N.E.2d 89, where the court upheld a conviction of \u201cdriving under [the] influence\u201d because any defect of certainty was cured by the specific statutory citation accompanying the charge. Similarly, the exact subsection was not cited here but that fault is cured by the language on the ticket charging the defendant in the exact terms of subsection (2).\nIt is well established that a criminal charge must set forth the name of the offense, its nature and elements and cite the statute defining it as an offense. (People v. Smith (1984), 99 Ill. 2d 467, 471, 459 N.E.2d 1357.) However, when a traffic citation informs a defendant of the offense he is charged with, failure to cite the precise subsection applicable is a technical defense of no avail if defendant is aware of the charge. (People v. Ware (1976), 41 Ill. App. 3d 902, 905-06, 355 N.E.2d 142.) The traffic citation charged the offense in the exact terms of subsection (2); it only left off any reference to that subsection. Moreover, it is difficult to see how defendant could have believed that the State might have charged him under subsection (1), when he had refused to take a breathalyzer test. These facts, together with the fact that there was no reference in the traffic citation to driving with a certain level of alcohol concentration in defendant\u2019s blood or breath, make it clear that defendant could not have been misled.\nSince the failure to specify the applicable subsection was only a formal defect, the charge could be amended at any time, and the amendment was proper here. (See Ill. Rev. Stat. 1985, ch. 38, par. 111 \u2014 5; People v. Ward (1981), 95 Ill. App. 3d 283, 287-88, 419 N.E.2d 1240.) In any event, even if the omission had rendered the charge uncertain, the State properly remedied the defect before defendant presented his case. See People v. Kountkofsky (1972), 8 Ill. App. 3d 725, 290 N.E.2d 307.\nAccordingly, defendant\u2019s conviction and sentence for drinking under the influence of alcohol is affirmed and the conviction and sentence for possessing a vehicle knowing it to have been stolen or converted is reversed.\nJudgment affirmed in part; reversed in part.\nSTROUSE and UNVERZAGT, JJ., concur.", "type": "majority", "author": "PRESIDING JUSTICE NASH" } ], "attorneys": [ "Daniel D. Yuhas and Jane Raley, both of State Appellate Defender\u2019s Office, of Springfield, for appellant.", "J. Michael Fitzsimmons, State\u2019s Attorney, of Wheaton, and Peter C. Drummond, of Staunton (Robert J. Biderman, of State\u2019s Attorneys Appellate Service Commission, of Springfield, and Cynthia N. Schneider, of State\u2019s Attorneys Appellate Service Commission, of Elgin, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN SERGEY, Defendant-Appellant.\nSecond District\nNo. 2 \u2014 84\u20140302\nOpinion filed November 4, 1985.\nDaniel D. Yuhas and Jane Raley, both of State Appellate Defender\u2019s Office, of Springfield, for appellant.\nJ. Michael Fitzsimmons, State\u2019s Attorney, of Wheaton, and Peter C. Drummond, of Staunton (Robert J. Biderman, of State\u2019s Attorneys Appellate Service Commission, of Springfield, and Cynthia N. Schneider, of State\u2019s Attorneys Appellate Service Commission, of Elgin, of counsel), for the People." }, "file_name": "0971-01", "first_page_order": 993, "last_page_order": 1000 }