People v. Nivens

603 N.E.2d 1275, 177 Ill. Dec. 901, 239 Ill. App. 3d 1, 1992 Ill. App. LEXIS 1851
CourtAppellate Court of Illinois
DecidedNovember 19, 1992
Docket2-89-0891
StatusPublished
Cited by9 cases

This text of 603 N.E.2d 1275 (People v. Nivens) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Nivens, 603 N.E.2d 1275, 177 Ill. Dec. 901, 239 Ill. App. 3d 1, 1992 Ill. App. LEXIS 1851 (Ill. Ct. App. 1992).

Opinion

JUSTICE UNVERZAGT

delivered the opinion of the court:

After a trial in absentia, a jury acquitted defendant, Charles E. Nivens, of one count of theft (Ill. Rev. Stat. 1987, ch. 38, par. 16— 1(a)(1)) and convicted him of one count each of possession of a stolen motor vehicle (Ill. Rev. Stat. 1987, ch. 95½, par. 4—103(a)(1)) and sale of a stolen motor vehicle (Ill. Rev. Stat. 1987, ch. 95½, par. 4—103(a)(1)). Holding that the conviction of possession merged into that for sale, the court sentenced defendant to one term of 30 months’ probation and 6 months’ incarceration with credit for time served. The court also ordered the defendant to pay $5,000 restitution.

On 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—4.1). We affirm.

On May 15, 1989, with defendant and his lawyer present, the court set defendant’s 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’s attorney to call defendant. When his attorney was unable to contact him, defendant was tried in absentia on July 19 and 20,1989.

Michael 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.

Fitzgerald next saw the van on December 22, 1988, when officers from the Illinois Secretary of State’s police brought it to his house. The van’s 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.

Fitzgerald identified People’s 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’s exhibit No. 2-B, the bill of sale, both bore the Fitzgeralds’ signatures.

Charles 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’s place of business, made an offer which Victor promptly accepted, and towed the van away.

At trial, Victor did not remember who bought his van. Defendant’s attorney showed him a photograph of defendant. Later, the photograph was admitted into evidence as defendant’s exhibit No. 1 and People’s exhibit No. 8. Victor admitted that he did not recognize the man in the photograph. On the day that he sold the van, Victor’s place of business was crowded with potential buyers, and the actual sale took very little time. After examining a photograph of the Fitzgeralds’ 1985 Suburban, Victor testified that he had never seen the Fitzgeralds’ van.

When Victor sold his van, he gave the buyer the van’s certificate of title. At trial, an accurate photocopy of the certificate was admitted into evidence as People’s exhibit No. 1-E. The front of the certificate identifies the van as a 1984 Chevrolet Suburban and lists the van’s VIN. It also identifies Victor as the owner. On the back of the certificate, in the section headed “Assignment of Title,” appears Victor’s signature. The document lists the sale date as August 31, 1987. Above Victor’s signature, after the standard words “The undersigned hereby certifies that the vehicle described in this title has been transferred to” appear the hand-printed words “William and Barbara S. Barkstrom.” In similar printing, the Barkstroms’ address is given as “8935 Palisades, Hinsdale.” 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.

William 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’ grandmother. The Barkstroms both identified the man in People’s exhibit No. 8 as Charles Nivens.

The 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.

On September 8, 1987, Nivens returned in the Fitzgeralds’ van to the Barkstroms’ 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.

William 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’s title was in Victor’s name at the time the Barkstroms purchased the van. Also, the VIN on the vehicle’s dashboard matched that on the title certificate. Both Barkstroms identified People’s 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.

The State’s final witness was Officer Richard Romero of the Illinois Secretary of State’s 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.

Romero 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’s office keeps records of all changes in a vehicle’s title.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

People v. Mendoza
2022 IL App (4th) 210506-U (Appellate Court of Illinois, 2022)
People v. Smith
Illinois Supreme Court, 1999
People v. Link
Appellate Court of Illinois, 1997
People v. Moton
661 N.E.2d 1176 (Appellate Court of Illinois, 1996)
People v. Jones
647 N.E.2d 612 (Appellate Court of Illinois, 1995)
People v. Kaye
636 N.E.2d 882 (Appellate Court of Illinois, 1994)

Cite This Page — Counsel Stack

Bluebook (online)
603 N.E.2d 1275, 177 Ill. Dec. 901, 239 Ill. App. 3d 1, 1992 Ill. App. LEXIS 1851, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-nivens-illappct-1992.