{ "id": 5147657, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHARLES E. NIVENS, Defendant-Appellant", "name_abbreviation": "People v. Nivens", "decision_date": "1992-11-19", "docket_number": "No. 2-89-0891", "first_page": "1", "last_page": "7", "citations": [ { "type": "official", "cite": "239 Ill. App. 3d 1" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "210 Ill. App. 3d 733", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2534946 ], "weight": 2, "pin_cites": [ { "page": "736" }, { "page": "735" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/210/0733-01" ] }, { "cite": "189 Ill. App. 3d 80", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2680800 ], "weight": 2, "pin_cites": [ { "page": "83" }, { "page": "83-84" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/189/0080-01" ] }, { "cite": "140 Ill. App. 3d 473", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3532900 ], "weight": 2, "pin_cites": [ { "page": "477" }, { "page": "477" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/140/0473-01" ] }, { "cite": "204 Ill. App. 3d 146", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2575644 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "151" }, { "page": "151" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/204/0146-01" ] }, { "cite": "95 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3111039 ], "pin_cites": [ { "page": "31" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/95/0001-01" ] }, { "cite": "148 Ill. 2d 454", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3283080 ], "weight": 2, "pin_cites": [ { "page": "465" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/148/0454-01" ] }, { "cite": "146 Ill. App. 3d 693", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3572830 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/146/0693-01" ] }, { "cite": "160 Ill. App. 3d 536", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3649993 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/ill-app-3d/160/0536-01" ] }, { "cite": "183 Ill. App. 3d 995", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2628435 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/ill-app-3d/183/0995-01" ] } ], "analysis": { "cardinality": 705, "char_count": 15415, "ocr_confidence": 0.777, "pagerank": { "raw": 1.3736310109435844e-07, "percentile": 0.6390254798638839 }, "sha256": "444c4e375a3b5591cfedb7952e38d2f137faaf8fa1f5e9a1ea644d546c45faf0", "simhash": "1:096a34fc3add5570", "word_count": 2580 }, "last_updated": "2023-07-14T16:51:04.850958+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "GEIGER and DOYLE, JJ., concur." ], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHARLES E. NIVENS, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE UNVERZAGT\ndelivered the opinion of the court:\nAfter a trial in absentia, a jury acquitted defendant, Charles E. Nivens, of one count of theft (Ill. Rev. Stat. 1987, ch. 38, par. 16\u2014 1(a)(1)) and convicted him of one count each of possession of a stolen motor vehicle (Ill. Rev. Stat. 1987, ch. 95\u00bd, par. 4\u2014103(a)(1)) and sale of a stolen motor vehicle (Ill. Rev. Stat. 1987, ch. 95\u00bd, par. 4\u2014103(a)(1)). Holding that the conviction of possession merged into that for sale, the court sentenced defendant to one term of 30 months\u2019 probation and 6 months\u2019 incarceration with credit for time served. The court also ordered the defendant to pay $5,000 restitution.\nOn appeal, the defendant argues that (1) the State did not prove beyond a reasonable doubt that he was the same Charles Nivens who possessed and sold the stolen automobile; (2) the State did not prove beyond a reasonable doubt that, at the time he possessed or sold the vehicle, he knew the vehicle was stolen or converted; and (3) the trial court should have granted his post-trial motion for a new trial because his absence from trial was not willful (see Ill. Rev. Stat. 1987, ch. 38, par. 115\u20144.1). We affirm.\nOn May 15, 1989, with defendant and his lawyer present, the court set defendant\u2019s trial for July 18, 1989. When the defendant did not appear that day, the court continued the trial to July 19, 1989, and allowed defendant\u2019s attorney to call defendant. When his attorney was unable to contact him, defendant was tried in absentia on July 19 and 20,1989.\nMichael Fitzgerald testified that, on the morning of August 4, 1987, he parked his 1985 Chevrolet Suburban van in the Medinah, Illinois, Metra station parking lot. When he returned that evening, the van was gone. Fitzgerald had given nobody permission to take the van. Fitzgerald and his wife purchased the van in 1985 for $16,500. The vehicle was in excellent condition as of August 4,1987.\nFitzgerald next saw the van on December 22, 1988, when officers from the Illinois Secretary of State\u2019s police brought it to his house. The van\u2019s distinctive features convinced Fitzgerald that it was the one stolen from him on August 4, 1987. However, the vehicle identification number (VIN) affixed to the dashboard had been changed. The car had been modified in other respects since Fitzgerald last saw it.\nFitzgerald identified People\u2019s exhibit No. 2-C as the certificate of title he and his wife received after they paid off the loan on the van. The certificate and People\u2019s exhibit No. 2-B, the bill of sale, both bore the Fitzgeralds\u2019 signatures.\nCharles Victor testified that, in the summer of 1987, he owned a 1984 Chevrolet Suburban van. An accident had damaged the van so badly that the vehicle could not be driven or repaired. Therefore, Victor advertised the van for sale. Late in July or early in August 1987, after receiving numerous responses, Victor sold the van for $2,000. The buyer came to Victor\u2019s place of business, made an offer which Victor promptly accepted, and towed the van away.\nAt trial, Victor did not remember who bought his van. Defendant\u2019s attorney showed him a photograph of defendant. Later, the photograph was admitted into evidence as defendant\u2019s exhibit No. 1 and People\u2019s exhibit No. 8. Victor admitted that he did not recognize the man in the photograph. On the day that he sold the van, Victor\u2019s place of business was crowded with potential buyers, and the actual sale took very little time. After examining a photograph of the Fitzgeralds\u2019 1985 Suburban, Victor testified that he had never seen the Fitzgeralds\u2019 van.\nWhen Victor sold his van, he gave the buyer the van\u2019s certificate of title. At trial, an accurate photocopy of the certificate was admitted into evidence as People\u2019s exhibit No. 1-E. The front of the certificate identifies the van as a 1984 Chevrolet Suburban and lists the van\u2019s VIN. It also identifies Victor as the owner. On the back of the certificate, in the section headed \u201cAssignment of Title,\u201d appears Victor\u2019s signature. The document lists the sale date as August 31, 1987. Above Victor\u2019s signature, after the standard words \u201cThe undersigned hereby certifies that the vehicle described in this title has been transferred to\u201d appear the hand-printed words \u201cWilliam and Barbara S. Barkstrom.\u201d In similar printing, the Barkstroms\u2019 address is given as \u201c8935 Palisades, Hinsdale.\u201d Victor testified that, when he sold his van, he signed his name on the back of the certificate; the signature on the exhibit was his. However, he left the space above his signature blank. The writing identifying the Barkstroms as buyers was not there when Victor tendered title to the buyer of his 1984 van.\nWilliam and Barbara Sue Barkstrom both testified that they were acquainted with Charles Nivens, as, some years before 1987, Nivens had lived in their neighborhood. The Barkstroms purchased their home from Nivens\u2019 grandmother. The Barkstroms both identified the man in People\u2019s exhibit No. 8 as Charles Nivens.\nThe Barkstroms testified that, on August 30, 1987, Nivens drove to their home in Hinsdale. At trial, the Barkstroms were shown a photograph of the Fitzgerald van. They identified the van in the photograph as the one that Nivens drove. Nivens told the Barkstroms that the Suburban belonged to a friend who was having financial difficulties and wanted to sell the van. After William Barkstrom said he would like to buy the van, Nivens said that his friend would sell it for $7,000.\nOn September 8, 1987, Nivens returned in the Fitzgeralds\u2019 van to the Barkstroms\u2019 residence. Nobody rode with him. The Barkstroms gave him $7,000 cash. Nivens gave them the van, the keys, and a certificate of title. Since then, the Barkstroms had not seen or heard from Nivens.\nWilliam Barkstrom identified People's exhibit No. 1-C as the title certificate that he received when he took possession of the van that Charles Nivens sold him. The certificate states that, on August 1, 1986, Wheels, Inc., of Skokie, Illinois, transferred the title to the 1984 Chevrolet Suburban to Charles Victor of Northbrook. At trial, Barkstrom recollected that the van\u2019s title was in Victor\u2019s name at the time the Barkstroms purchased the van. Also, the VIN on the vehicle\u2019s dashboard matched that on the title certificate. Both Barkstroms identified People\u2019s exhibit No. 1-F as a form that Barbara Barkstrom filled out and signed when she withdrew $7,000 from a currency exchange. The form states that on August 31, 1987, the Barkstroms bought a 1984 Chevrolet Suburban from Charles Victor.\nThe State\u2019s final witness was Officer Richard Romero of the Illinois Secretary of State\u2019s police. Romero was the leader of a 1988 investigation regarding the 1984 Chevrolet Suburban that Victor had sold. The investigation stemmed from a State investigation of a used car dealership.\nRomero explained that the police use VINs to track changes in the possession of vehicles. The VIN is the number the dealer assigns to identify a specific vehicle. The VIN is on a tag attached to the dashboard of the vehicle. It is also possible to derive the VIN from sets of numbers that are printed on locations elsewhere in or upon the vehicle. For each vehicle, the VIN appears on all change of title forms. The Secretary of State\u2019s office keeps records of all changes in a vehicle\u2019s title.\nRomero recounted that, in December 1988, the Barkstroms agreed to let him and a colleague inspect the van they had bought from Charles Nivens. Romero discovered that the VIN on the dashboard did not match the derived VIN. The police ran checks on the VINs, ordered copies of certified title changes for the Barkstroms\u2019 van and the Fitzgeralds\u2019 van, and confiscated the Barkstroms\u2019 van.\nThe police discovered that the true VIN (the one recorded by the Secretary of State) for the Barkstroms\u2019 van matched the derivative VIN and the VIN on the Fitzgeralds\u2019 certificate of title. The VIN on the dashboard of the van had been taken off of a separate vehicle-one that came out of the dealership that the police had been investigating. Romero eventually learned that Charles Victor had previously owned this vehicle. Romero testified that, according to State records, Victor had \u201csigned the vehicle off\u201d and that title was transferred to the Barkstroms.\nThe jury found defendant guilty of the possession and the sale of the stolen Fitzgerald van.\nDefendant moved for a new trial. His written motion alleged that his absence from trial was not willful. The court heard the motion, with defendant as the sole witness. Defendant stated on direct examination that he posted bond in January 1989 and had not missed a court date until trial. At the time he was arrested, he was living in his mother\u2019s house. Shortly before the trial itself, his mother sold the house and moved out of Illinois. Since late June 1989, defendant, who was on parole on unrelated charges, had been living with a friend. Within a week of his move, he notified his parole officer of his new address.\nOn direct examination, defendant stated that the first time he learned that he had been tried and convicted in absentia was when he went to the courthouse on July 24, 1989, and Mr. Sotomayor of the public defender\u2019s office told him that the trial had already taken place. On cross-examination, defendant admitted that this account was untruthful. He acknowledged that on July 21 or 22, 1989, Mrs. Barkstrom told him that he had missed his trial. Defendant also stated that he had not missed his May 15,1989, court date.\nThe court denied the motion for a new trial. Judge Telander noted that the defendant and his attorney were present in court on May 15, 1989, when Judge Robert Cox, then assigned to the case, set the trial for July 18, 1989. The transcript of the May 15, 1989, proceeding confirms this observation. Judge Telander concluded that defendant had a responsibility to get his court dates straight and to inform his attorney of his whereabouts. The judge therefore found no reason to vacate the judgment. After defendant was sentenced, he timely appealed.\nDefendant argues first that the evidence was insufficient to show that he was the Charles Nivens who possessed the Fitzgerald van and sold the van to the Barkstroms. Acknowledging that somebody with his name performed these actions, defendant maintains that mere identity of names is legally insufficient to establish identity of person. Defendant cites several appellate court decisions enunciating this principle. See People v. Newbern (1989), 183 Ill. App. 3d 995; People v. Johnston (1987), 160 Ill. App. 3d 536; People v. Broyld (1986), 146 Ill. App. 3d 693.\nAs the State notes, however, our supreme court has rejected the argument upon which defendant relies. In People v. Smith (1992), 148 Ill. 2d 454, the court held that identity of names raises a presumption of identity of persons; if this presumption is unrebutted, identity of person is established beyond a reasonable doubt. (Smith, 148 Ill. 2d at 465; see People v. Davis (1983), 95 Ill. 2d 1, 31.) As defendant introduced no evidence to rebut this presumption, the State adequately established that he was the Charles Nivens who possessed and sold the stolen Fitzgerald van.\nAlso, we agree with the State that there was evidence of identity beyond the identity of names. Defendant\u2019s attorney conceded (and defendant does not now argue) that the photograph admitted as People\u2019s exhibit No. 8 (and used by defendant\u2019s attorney in cross-examining Charles Victor) is that of defendant and not a picture of some other person by the same name.\nDefendant argues second that the evidence did not establish beyond a reasonable doubt that, when he possessed and sold the Fitzgeralds\u2019 van, he knew the vehicle was stolen or converted. The State replies that the jury could properly infer defendant\u2019s guilty knowledge from his unexplained possession of recently stolen property. We agree.\nAs it was instructed, the jury could infer the defendant\u2019s culpable state of mind from his exclusive and unexplained possession of recently stolen property. (See Illinois Pattern Jury Instructions, Criminal, No. 13.21 (2d ed. 1981); People v. Ferguson (1990), 204 Ill. App. 3d 146, 151; People v. Mijoskov (1986), 140 Ill. App. 3d 473, 477.) Although a defendant may rebut this inference with an explanation, the defendant must offer a reasonable story or be judged by its improbabilities. The trier of fact need not accept the defendant\u2019s explanation, but may evaluate its probability or improbability in light of the surrounding circumstances. Ferguson, 204 Ill. App. 3d at 151; Mijoskov, 140 Ill. App. 3d at 477.\nThe jury had ample reason to disbelieve defendant\u2019s account to the Barkstroms that he was selling the car for \u201ca friend\u201d and did not know that the car was stolen. As the prosecutor noted in closing argument, it is less than believable that a friend (who was otherwise unidentified) would entrust defendant with a $7,000 sale without so much as appearing at the offer or sale. Moreover, defendant gave the Barkstroms a certificate of title that represented that the van was owned by Charles Victor. Either defendant did not know Charles Victor, in which case his story that he was selling the car for \u201ca friend\u201d was false, or he did know Charles Victor, in which case he realized that the certificate of title was misleading and that Victor never owned the 1985 Suburban that defendant sold to the Barkstroms. Moreover, defendant sold the van for cash and conveniently fell out of touch after the Barkstroms paid him. The jury did not have to believe that defendant was an unknowing victim of circumstances.\nDefendant argues finally that the trial court erred in finding that defendant\u2019s absence from the trial was willful. The defendant\u2019s willful absence is a prerequisite to trial in absentia. (Ill. Rev. Stat. 1987, ch. 38, par. 115\u20144.1.) To establish a prima facie case of willful absence, the State must prove that the defendant was advised that his failure to appear may result in a trial in absentia-, was advised of his trial date; and did not appear. (People v. Smith (1989), 189 Ill. App. 3d 80, 83.) Without dispute, the State proved these elements.\nBecause it is the defendant\u2019s duty to keep track of his court dates, to appear when required, and to keep the court informed of his whereabouts, absence resulting from confusion or forgetfulness will not warrant a new trial. (People v. Canal (1991), 210 Ill. App. 3d 733, 736; Smith, 189 Ill. App. 3d at 83-84.) The defendant rebuts the finding of willful absence only by proving that his absence was not his fault and was due to circumstances beyond his control. (Canal, 210 Ill. App. 3d at 735.) Defendant did not meet this burden. The trial court properly denied his motion.\nThe judgment of the circuit court of Du Page County is affirmed.\nAffirmed.\nGEIGER and DOYLE, JJ., concur.", "type": "majority", "author": "JUSTICE UNVERZAGT" } ], "attorneys": [ ". G. Joseph Weller and Steven E. Wiltgen, both of State Appellate Defender\u2019s Office, of Elgin, and Charles M. Schiedel and Susan E. Alesia, both of State Appellate Defender\u2019s Office, of Springfield, for appellant.", "James E. Ryan, State\u2019s Attorney, of Wheaton, and David A. Fernandes, of Champaign (William L. Browers, of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHARLES E. NIVENS, Defendant-Appellant.\nSecond District\nNo. 2-89-0891\nOpinion filed November 19, 1992.\n. G. Joseph Weller and Steven E. Wiltgen, both of State Appellate Defender\u2019s Office, of Elgin, and Charles M. Schiedel and Susan E. Alesia, both of State Appellate Defender\u2019s Office, of Springfield, for appellant.\nJames E. Ryan, State\u2019s Attorney, of Wheaton, and David A. Fernandes, of Champaign (William L. Browers, of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0001-01", "first_page_order": 21, "last_page_order": 27 }