People v. Perkins
Opinion
2020 IL App (2d) 170963 No. 2-17-0963 Opinion filed August 10, 2020 ______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT ______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Kendall County. ) Plaintiff-Appellee, ) ) v. ) No. 15-CF-187 ) DANIEL E. PERKINS, ) Honorable ) Robert P. Pilmer, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________
JUSTICE ZENOFF delivered the judgment of the court, with opinion. Presiding Justice Birkett and Justice Brennan concurred in the judgment and opinion.
OPINION
¶1 Following a bench trial, defendant, Daniel E. Perkins, was found guilty of aggravated
kidnapping with a firearm (720 ILCS 5/10-2(a)(6) (West 2014)), two counts of aggravated criminal
sexual assault with a firearm (720 ILCS 5/11-1.30(a)(8) (West 2014)), attempted aggravated
criminal sexual assault with a firearm (720 ILCS 5/8-4(a), 11-1.30(a)(8) (West 2014)), and armed
violence (720 ILCS 5/33A-2(a) (West 2014)). The court sentenced defendant to an aggregate of
52 years in prison. Defendant appeals, arguing that (1) he is entitled to a new trial because two of
the State’s witnesses testified falsely and (2) the evidence was insufficient to support his
conviction of armed violence. For the reasons that follow, we affirm.
¶2 I. BACKGROUND 2020 IL App (2d) 170963
¶3 Defendant and K.O. dated for approximately eight months before breaking up around the
beginning of June 2015. Over the next few weeks, they discussed the possibility of getting back
together. During that time, defendant heard rumors that K.O. had rekindled her relationship with
Christopher Kleveno, who was the father of one of her children. Because of defendant’s anger
with K.O., on June 28, 2015, defendant allegedly forced K.O. at gunpoint to perform sexual acts
on him before making her drive him around in her car for approximately two hours. The State
charged defendant with aggravated kidnapping with a firearm, two counts of aggravated criminal
sexual assault with a firearm, attempted aggravated criminal sexual assault with a firearm, and
three counts of armed violence. Prior to trial, the court severed two of the armed violence charges
that involved allegations that defendant possessed drugs. The matter proceeded to a bench trial on
the remaining five charges.
¶4 A. Overview of the Trial Evidence
¶5 We will begin with an overview of the trial evidence. After doing so, we will focus more
specifically on the testimony that defendant claims was perjured.
¶6 K.O. testified as follows. On June 28, 2015, she went to defendant’s house to pick up some
personal belongings. Once she entered the house, defendant pointed a gun at her head and told her
to call Kleveno from her cell phone. Defendant and Kleveno exchanged heated words over the
phone, and K.O. told Kleveno that defendant had a gun. After the phone call, defendant threw
K.O. into a stove when she attempted to grab her phone from him. Defendant also cocked his gun
so that it ejected three bullets onto the kitchen floor. Defendant then told K.O. to “take care of
him” sexually. She complied, and defendant held the gun in his hand during that activity.
Immediately thereafter, K.O. received a call from her aunt, who, in the meantime, had received a
call from Kleveno. K.O. picked up the phone, told her aunt that she was fine, and said that she
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had to call her aunt back. Defendant then told K.O. that they were going to leave his house and
that he had somewhere to take her. As they walked from defendant’s house to K.O.’s car,
defendant had the gun in his hand and was “kind of *** waving it around.” K.O. got into the
driver’s seat of her car, and defendant got into the front passenger’s seat.
¶7 According to K.O., defendant told her where to drive and she followed his instructions. At
defendant’s direction, she called Kleveno again from her phone while she and defendant drove
around. After that conversation, defendant threw K.O.’s phone out of the passenger’s side window
at an intersection. Defendant continued to threaten K.O. in the car, including by putting the gun
to her head. Over the next two hours, defendant told K.O. to stop at a gas station, a forest preserve,
and another gas station. At the first gas station, defendant followed K.O. into the women’s
bathroom. Although defendant threatened K.O. multiple times during this ordeal, she eventually
was able to placate him by kissing him, holding his hand, and assuring him that they would get
back together. Defendant threw his gun into a lake in the forest preserve. After stopping at the
second gas station, K.O. and defendant drove back to defendant’s home, where a police officer
was waiting (Kleveno had contacted the authorities). Defendant was arrested without incident.
¶8 Multiple witnesses—including police officers, Kleveno, and K.O.’s aunt—testified that
K.O. appeared traumatized in the immediate aftermath of these events. Police officers testified
that K.O. initially was reluctant to tell them everything that had happened, expressing fears that
defendant would retaliate against her family. K.O.’s aunt corroborated K.O.’s testimony about
their brief phone conversation on June 28, 2015. Kleveno corroborated K.O.’s testimony about
his phone conversations with K.O. and defendant on June 28.
¶9 Upon searching defendant’s home, the police found three unfired bullets on his kitchen
floor and an open gun case on his bedroom floor. The police located K.O.’s phone approximately
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40 feet off the road where K.O. said that defendant had thrown it out of the car. K.O. accompanied
police officers to the location in the forest preserve where defendant threw his gun into the water.
Divers recovered defendant’s gun at that location.
¶ 10 When the police questioned defendant on the night of the incident, he denied having sexual
contact with K.O. for several weeks. However, a swab of defendant’s penis revealed the presence
of deoxyribonucleic acid (DNA) other than his own. K.O. could not be excluded as the contributor
of that DNA. The State introduced evidence that defendant may have attempted to tamper with
this test after a police officer requested a DNA swab of defendant’s penis. In this respect, the
State’s evidence came from a police officer’s interpretation of what he saw on the surveillance
video from the booking room. We have reviewed the relevant portion of the surveillance video.
Because of the angle of the camera, it is difficult to tell what happened. Nonetheless, it does appear
that defendant, while seated at a table, put his right hand down his pants after that hand had been
near his mouth. At trial, defendant acknowledged that he put his hand down his pants at the police
station. He said that he did so not to tamper with the DNA test but because it was cold in the police
station.
¶ 11 The State also introduced evidence that, while defendant was awaiting trial at the Kendall
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2020 IL App (2d) 170963 No. 2-17-0963 Opinion filed August 10, 2020 ______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT ______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Kendall County. ) Plaintiff-Appellee, ) ) v. ) No. 15-CF-187 ) DANIEL E. PERKINS, ) Honorable ) Robert P. Pilmer, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________
JUSTICE ZENOFF delivered the judgment of the court, with opinion. Presiding Justice Birkett and Justice Brennan concurred in the judgment and opinion.
OPINION
¶1 Following a bench trial, defendant, Daniel E. Perkins, was found guilty of aggravated
kidnapping with a firearm (720 ILCS 5/10-2(a)(6) (West 2014)), two counts of aggravated criminal
sexual assault with a firearm (720 ILCS 5/11-1.30(a)(8) (West 2014)), attempted aggravated
criminal sexual assault with a firearm (720 ILCS 5/8-4(a), 11-1.30(a)(8) (West 2014)), and armed
violence (720 ILCS 5/33A-2(a) (West 2014)). The court sentenced defendant to an aggregate of
52 years in prison. Defendant appeals, arguing that (1) he is entitled to a new trial because two of
the State’s witnesses testified falsely and (2) the evidence was insufficient to support his
conviction of armed violence. For the reasons that follow, we affirm.
¶2 I. BACKGROUND 2020 IL App (2d) 170963
¶3 Defendant and K.O. dated for approximately eight months before breaking up around the
beginning of June 2015. Over the next few weeks, they discussed the possibility of getting back
together. During that time, defendant heard rumors that K.O. had rekindled her relationship with
Christopher Kleveno, who was the father of one of her children. Because of defendant’s anger
with K.O., on June 28, 2015, defendant allegedly forced K.O. at gunpoint to perform sexual acts
on him before making her drive him around in her car for approximately two hours. The State
charged defendant with aggravated kidnapping with a firearm, two counts of aggravated criminal
sexual assault with a firearm, attempted aggravated criminal sexual assault with a firearm, and
three counts of armed violence. Prior to trial, the court severed two of the armed violence charges
that involved allegations that defendant possessed drugs. The matter proceeded to a bench trial on
the remaining five charges.
¶4 A. Overview of the Trial Evidence
¶5 We will begin with an overview of the trial evidence. After doing so, we will focus more
specifically on the testimony that defendant claims was perjured.
¶6 K.O. testified as follows. On June 28, 2015, she went to defendant’s house to pick up some
personal belongings. Once she entered the house, defendant pointed a gun at her head and told her
to call Kleveno from her cell phone. Defendant and Kleveno exchanged heated words over the
phone, and K.O. told Kleveno that defendant had a gun. After the phone call, defendant threw
K.O. into a stove when she attempted to grab her phone from him. Defendant also cocked his gun
so that it ejected three bullets onto the kitchen floor. Defendant then told K.O. to “take care of
him” sexually. She complied, and defendant held the gun in his hand during that activity.
Immediately thereafter, K.O. received a call from her aunt, who, in the meantime, had received a
call from Kleveno. K.O. picked up the phone, told her aunt that she was fine, and said that she
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had to call her aunt back. Defendant then told K.O. that they were going to leave his house and
that he had somewhere to take her. As they walked from defendant’s house to K.O.’s car,
defendant had the gun in his hand and was “kind of *** waving it around.” K.O. got into the
driver’s seat of her car, and defendant got into the front passenger’s seat.
¶7 According to K.O., defendant told her where to drive and she followed his instructions. At
defendant’s direction, she called Kleveno again from her phone while she and defendant drove
around. After that conversation, defendant threw K.O.’s phone out of the passenger’s side window
at an intersection. Defendant continued to threaten K.O. in the car, including by putting the gun
to her head. Over the next two hours, defendant told K.O. to stop at a gas station, a forest preserve,
and another gas station. At the first gas station, defendant followed K.O. into the women’s
bathroom. Although defendant threatened K.O. multiple times during this ordeal, she eventually
was able to placate him by kissing him, holding his hand, and assuring him that they would get
back together. Defendant threw his gun into a lake in the forest preserve. After stopping at the
second gas station, K.O. and defendant drove back to defendant’s home, where a police officer
was waiting (Kleveno had contacted the authorities). Defendant was arrested without incident.
¶8 Multiple witnesses—including police officers, Kleveno, and K.O.’s aunt—testified that
K.O. appeared traumatized in the immediate aftermath of these events. Police officers testified
that K.O. initially was reluctant to tell them everything that had happened, expressing fears that
defendant would retaliate against her family. K.O.’s aunt corroborated K.O.’s testimony about
their brief phone conversation on June 28, 2015. Kleveno corroborated K.O.’s testimony about
his phone conversations with K.O. and defendant on June 28.
¶9 Upon searching defendant’s home, the police found three unfired bullets on his kitchen
floor and an open gun case on his bedroom floor. The police located K.O.’s phone approximately
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40 feet off the road where K.O. said that defendant had thrown it out of the car. K.O. accompanied
police officers to the location in the forest preserve where defendant threw his gun into the water.
Divers recovered defendant’s gun at that location.
¶ 10 When the police questioned defendant on the night of the incident, he denied having sexual
contact with K.O. for several weeks. However, a swab of defendant’s penis revealed the presence
of deoxyribonucleic acid (DNA) other than his own. K.O. could not be excluded as the contributor
of that DNA. The State introduced evidence that defendant may have attempted to tamper with
this test after a police officer requested a DNA swab of defendant’s penis. In this respect, the
State’s evidence came from a police officer’s interpretation of what he saw on the surveillance
video from the booking room. We have reviewed the relevant portion of the surveillance video.
Because of the angle of the camera, it is difficult to tell what happened. Nonetheless, it does appear
that defendant, while seated at a table, put his right hand down his pants after that hand had been
near his mouth. At trial, defendant acknowledged that he put his hand down his pants at the police
station. He said that he did so not to tamper with the DNA test but because it was cold in the police
station.
¶ 11 The State also introduced evidence that, while defendant was awaiting trial at the Kendall
County jail, he solicited a fellow inmate to kill K.O. Defendant arranged for one of his friends to
post bond for that inmate.
¶ 12 Defendant testified in his defense as follows. While K.O. was at his house on June 28,
2015, he wanted to speak with Kleveno on the phone to clear up rumors that K.O. was engaged to
Kleveno. Defendant and Kleveno got into an argument over the phone, and Kleveno threatened
to come over to defendant’s house and “beat the s***” out of him. After that phone conversation,
defendant went into his bedroom to change his shirt. K.O. followed him, apologized, and
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embraced him. They had “passionate makeup sex” but he was unable to get an erection. Defendant
acknowledged lying to police officers when he told them that he did not have sexual contact with
K.O. on June 28.
¶ 13 Defendant insisted that he did not retrieve his gun until after he and K.O. had sexual
contact. Defendant testified that, because Kleveno had threatened him and he “didn’t want any
trouble,” he grabbed his gun before he and K.O. left the house. Asked to explain the three bullets
that were found on his kitchen floor, defendant said that “the gun was really not functioning
properly,” so he “slid the gun a couple times and it ejected the bullets out of the gun.”
¶ 14 Defendant testified that he and K.O. decided to take her car for a drive because his car was
blocked. In defendant’s words:
“She wanted to get in the car. She said that she was starving. She hadn’t aten [sic] anything
all day. She couldn’t get out of the house fast enough with me.”
Once they got in K.O.’s car, she asked him where to go, and he told her to head out of town.
Defendant told K.O. to call Kleveno again from the car. Defendant thought that, during the earlier
phone conversation, K.O. did not make a good attempt to clarify whether she and Kleveno were
engaged. Defendant then got into another argument with Kleveno, during which Kleveno said that
he had called the police. Defendant threw K.O.’s phone out of the car window. Defendant
admitted lying to police officers when he told them that K.O. threw her phone out of the window.
¶ 15 Defendant testified that he and K.O. went to two gas stations and a forest preserve.
Defendant acknowledged that he followed K.O. into the bathroom at one of the gas stations, but
he added that it was “[n]ot uncommon” for him to do that. He admitted throwing his gun into the
lake at the forest preserve. He claimed that he did so because he “wasn’t going home with a
weapon,” knowing that Kleveno had called the police. Defendant maintained that he never
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threatened K.O. on June 28, 2015, and that he never made her go anywhere that she did not want
to go. The State introduced evidence of defendant’s prior felony conviction to impeach his
credibility.
¶ 16 Two of defendant’s neighbors testified for the defense. They were in their garage on June
28, 2015, and they had a clear view of defendant’s house. They did not notice anything unusual.
One of the neighbors saw defendant getting into K.O.’s car but did not notice a gun in defendant’s
hands. That neighbor, however, did not see defendant walk from his house to K.O.’s car.
¶ 17 Defendant also called to the stand an employee of the first gas station where he and K.O.
stopped on June 28, 2015. That witness testified that she did not notice anything out of the
ordinary.
¶ 18 Defendant called to the stand a police officer, who testified that K.O.’s aunt told him that
K.O. had called her on June 28, 2015—not the other way around, as K.O. and the aunt testified.
¶ 19 Another officer testified for the defense about his unsuccessful efforts to procure copies
of the surveillance videos from the two gas stations. That officer had the opportunity, however, to
view the surveillance video from the second gas station. He noticed that the video depicted a man
wearing a Cubs jersey who was by himself at the counter. Other evidence introduced at trial
showed that defendant was wearing a Cubs jersey on June 28, 2015.
¶ 20 B. Trial Testimony Regarding K.O.’s Relationship with Kleveno
¶ 21 Because K.O.’s and Kleveno’s testimony about the nature of their relationship in June 2015
is one of the focal points of this appeal, it is necessary to further address this aspect of the evidence.
¶ 22 K.O. testified on direct examination by the prosecutor that, as of the time of trial, she shared
a residence with Kleveno. Kleveno watched her children, including a daughter whom she and
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Kleveno had together before June 28, 2015. The prosecutor had the following colloquy with K.O.
about her relationship with Kleveno:
“Q. You said that the relationship [with defendant] had stopped or broken down
at least three weeks prior to June 28th?
A. Yes.
Q. Did you during that time frame start—did you see anyone else during that time
frame?
A. No.
Q. Did you find out that people—that someone thought that you were seeing
someone else?
A. Yes.”
At this point, K.O. explained that a coworker of hers named Lydia was fired and then “made
contact with other people” about K.O. K.O. learned about this from defendant. Specifically,
defendant told K.O. that Lydia contacted him and said that K.O. had been “seeing” Kleveno, and
that this had been ongoing for K.O.’s and defendant’s “whole relationship.” The following
exchange then occurred:
“Q. Was that true?
Q. Had you seen [Kleveno] during the relationship [with defendant]?
A. I had seen him, yes, but—
Q. Physically saw him?
A. Correct.
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Q. You had a daughter in common and sometimes he would watch the kids and
sometimes you would watch the kids?
A. Right.
Q. But you did not have a romantic relationship with [Kleveno]?
A. No.”
¶ 23 On cross-examination, defense counsel questioned K.O. about her relationship with
Kleveno:
“Q. You had been dating [defendant] for about eight or nine months prior to this
June 28th incident, correct?
Q. Prior to that, you actually had a child with [Kleveno], correct?
***
Q. And on June 28th or 27th, you were still living with [Kleveno]?
A. We weren’t living together.
Q. Were you staying with him then?
A. I stayed at his house occasionally.
Q. And did you stay at his house the 26th, the night of the 26th of June?
A. 26th of June? Yes, I did.
Q. And during that time you were still texting with [defendant]; is that correct?
-8- 2020 IL App (2d) 170963
Q. And you were going back and forth about your relationship with [Kleveno]
versus your relationship with [defendant]; is that correct?
Q. During this texting [with defendant] on the 27th of June?
Q. Were you and [defendant] discussing your relationship, correct [sic]?
Q. And part of that was your relationship with [Kleveno] as well, correct?
Q. And [Kleveno] was essentially saying, hey, just make up your mind, pick one of
us, correct?
Q. [Kleveno] said, hey, could work out for you, [K.O.’s and Kleveno’s daughter]
being with her dad, right?
Q. Through this, there was some emotions going back and forth on both of you,
correct?
Q. At some point [defendant] was saying, hey, just leave me alone, don’t talk to me
anymore, correct?
A. Yeah.
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Q. You actually would call [defendant] back saying, hey, I want to work it out, I
want to talk to you, I still love you, correct?
¶ 24 Kleveno testified as follows on direct examination by the prosecutor:
“Q. Who do you live with currently?
A. [K.O.]
Q. What is your relationship with [K.O.]?
A. She is my daughter’s mother.
Q. And how long have you known [K.O.]?
A. Ten years.
Q. And considering that she’s your daughter’s mother, you guys had an intimate
relationship at one point; is that correct?
Q. How long were you in a relationship with her for?
A. Four years.
Q. What is the status of your relationship with her now?
A. Communal living, pretty much living together taking care of the kids, regular
life type thing, I guess.”
When the prosecutor subsequently asked Kleveno about the status of his relationship with K.O. on
June 28, 2015, the following colloquy ensued:
“A. Just she had dropped off our daughter every other weekend, so what would you
call that?
Q. Did you have an amicable relationship at that time?
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Q. And was she living with you at that time?
¶ 25 On cross-examination, Kleveno testified as follows:
“Q. Now, you and [K.O.] had a dating relationship obviously prior to this event,
Q. [W]ould you say your relationship was on and off throughout this period of time?
A. Prior to this?
Q. Yes.
A. No. We broke up before her and [defendant] started dating and that was the end
of it.
Q. You had broken up eight, nine months prior to this?
Q. You are now living together today, correct?
Q. I think you said you called that communal living.
Q. You have a daughter; is that correct?
Q. Now—so you see her [presumably, K.O.] on a daily basis at this time?
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Q. You’re able to talk about your lives and the case and what’s going on here today,
A. Correct.”
¶ 26 C. Findings of Guilt
¶ 27 The court found defendant guilty of all five charged offenses that proceeded to trial. In
explaining its ruling, the court commented that it found various witnesses, including K.O. and
Kleveno, credible. The court did not deem defendant’s testimony “sufficiently credible.”
¶ 28 D. Posttrial Motion
¶ 29 Defendant filed a timely posttrial motion. He thereafter hired new counsel who, with leave
of court, supplemented the posttrial motion three times. The only claim in defendant’s posttrial
motion that is relevant to this appeal is defendant’s allegation that K.O. and Kleveno perjured
themselves when they testified about the status of their relationship in June 2015. To establish his
allegations of perjury, defendant relied heavily on text messages between K.O. and Kleveno, which
were obtained through an extraction of K.O.’s phone (the prosecutor had tendered this extraction
report to defense counsel prior to trial). Those text messages showed that K.O. and Kleveno had
a romantic and sexual relationship in the weeks leading up to June 28, 2015, which was around
the same time that K.O. was contemplating getting back together with defendant. According to
defendant, the prosecutor had a duty to bring K.O.’s and Kleveno’s false testimony to the court’s
attention. Alternatively, defendant argued that his trial counsel was ineffective for failing to cross-
examine K.O. and Kleveno regarding these text messages. In that light, defendant requested a new
trial.
¶ 30 The court held a lengthy evidentiary hearing on defendant’s posttrial motion. Most of the
evidence is not relevant to the issues on appeal. Matthew Hale, a private investigator hired by the
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defense, testified that he “recently” spoke with Kleveno on the phone. Kleveno told Hale that
(1) Kleveno was engaged to K.O. (presumably, at the time of Hale’s phone conversation with
Kleveno), (2) Kleveno and K.O. were in a sexual relationship as of February 2015, (3) Kleveno
and K.O. had an ongoing romantic and sexual relationship, including when they were living
together, and (4) Kleveno and K.O. were in a romantic and sexual relationship before and after the
incident with defendant.
¶ 31 Defendant’s trial counsel testified at the posttrial motion hearing that he believed that he
had reviewed the extraction report of K.O.’s phone prior to trial. He said that the nature of K.O.’s
and Kleveno’s relationship was not a “big focus” of his trial theory; instead, he focused on the fact
that neither defendant’s neighbors nor the gas station attendant noticed anything out of the ordinary
on June 28, 2015.
¶ 32 The trial court denied defendant’s posttrial motion. The court determined that “there
wasn’t enough in Mr. Hale’s testimony that would lead the Court to believe that [defendant’s trial
counsel] was ineffective in his representation of [defendant] throughout the time leading up to the
trial and during the trial.” The court explained that defendant failed to prove that his trial counsel’s
representation fell below an objective standard of reasonableness. The court also found that any
shortcomings in counsel’s performance “were not so serious as to deprive the defendant of a fair
trial.” Furthermore, the court ruled that there was not a reasonable probability that the result of
the trial would have been different but for counsel’s unprofessional errors. Focusing specifically
on the allegations of perjury, the court said that defendant’s allegations did not relate to “material
facts.” Moreover, there was “not sufficient evidence to show that [K.O.] or Mr. Kleveno actually
lied with respect to their testimony,” and there was “certainly nothing to indicate that the State
knowingly permitted a witness to lie at all.”
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¶ 33 E. Sentencing
¶ 34 The court sentenced defendant on four of the five counts, as the court determined that one
of the two counts of aggravated criminal sexual assault with a firearm merged into the other.
Defendant was sentenced to an aggregate of 52 years in prison. Specifically, defendant was
sentenced to 25 years in prison for aggravated kidnapping with a firearm, to be served
consecutively to a 27-year sentence for aggravated criminal sexual assault with a firearm.
Defendant received a 7-year sentence for attempted aggravated criminal sexual assault with a
firearm and a 17-year sentence for armed violence. Both of those sentences were to be served
consecutively to the sentence imposed for aggravated criminal sexual assault with a firearm but
concurrently with the sentence for aggravated kidnapping with a firearm.
¶ 35 The court denied defendant’s postsentencing motion, and defendant timely appealed.
¶ 36 II. ANALYSIS
¶ 37 A. Due Process/Ineffective Assistance of Counsel
¶ 38 Defendant first argues that the evidence presented at his posttrial motion hearing
conclusively established that (1) K.O. and Kleveno were in a romantic relationship in June 2015
and (2) both the prosecution and defense counsel knew or should have known that K.O.’s and
Kleveno’s trial testimony was false. Accordingly, defendant maintains that he is entitled to a new
trial, either based on a due process violation or because he received ineffective assistance of
counsel. The State responds that defendant failed to meet his burden to prove that K.O. and
Kleveno perjured themselves. The State also contends that trial counsel’s strategy was reasonable
and that the evidence of defendant’s guilt was overwhelming.
¶ 39 1. Due Process
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¶ 40 The State violates due process by obtaining a conviction through use of evidence that its
representatives know to be false. Napue v. Illinois, 360 U.S. 264, 269 (1959). Even where the
State does not solicit false evidence, the State may not allow such evidence to “go uncorrected
when it appears.” Napue, 360 U.S. at 269. These principles apply equally where the false evidence
goes only to the issue of witness credibility. Napue, 360 U.S. at 269. When asserting a due process
violation, a defendant bears the burden to establish by clear and convincing proof that the State
used perjured testimony in the manner proscribed by Napue. People v. Veal, 58 Ill. App. 3d 938,
964 (1978). If the defendant meets that initial burden, the State must then “show beyond a
reasonable doubt that the perjured testimony did not contribute to [the defendant’s] convictions.”
Veal, 58 Ill. App. 3d at 964. “A conviction obtained by the knowing use of perjured testimony
must be set aside if there is any reasonable likelihood that the false testimony could have affected
the jury’s verdict.” People v. Olinger, 176 Ill. 2d 326, 349 (1997). This is equivalent to the
harmless error standard. Olinger, 176 Ill. 2d at 349.
¶ 41 The parties dispute the appropriate standard of review. The trial court denied defendant’s
due process claim following an evidentiary hearing on defendant’s posttrial motion. Defendant,
relying on People v. Nowicki, 385 Ill. App. 3d 53 (2008), asserts that de novo review is appropriate.
As the State correctly points out, Nowicki did not specify the standard of review it applied in its
analysis of the alleged use of perjured testimony. Citing Veal, the State maintains that the proper
inquiry is whether the trial court’s decision was “manifestly erroneous.” Veal indeed supports
applying the manifest-weight-of-the-evidence standard of review. Veal, 58 Ill. App. 3d at 964.
Defendant offers no case law or convincing reason to apply any other standard of review.
¶ 42 Defendant contends that the record clearly establishes that K.O. and Kleveno provided
false testimony regarding the status of their relationship in June 2015 and that this false testimony
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likely affected the result of trial. The trial court rejected defendant’s arguments. For the following
reasons, the court’s conclusion was not against the manifest weight of the evidence.
¶ 43 In support of his posttrial motion, defendant relied upon text messages between K.O. and
Kleveno that contained dialogue suggesting they were engaged in a romantic and sexual
relationship after K.O. broke up with defendant in early June 2015. However, when the prosecutor
questioned K.O. regarding her relationship with Kleveno, he did not establish a clear timeframe
relevant to some of his questions:
“Q. You said that the relationship [with defendant] had stopped or broken down at
least three weeks prior to June 28th?
Q. Did you during that time frame start—did you see anyone else during that time
frame.
A. No.” (Emphasis added).
One could reasonably interpret “that time frame” as referencing the three weeks after K.O. and
defendant broke up. One could also reasonably interpret “that time frame” as referencing the
period that K.O. dated defendant. It seems likely that K.O. assumed the latter, as she went on to
discuss untrue rumors that she was “seeing” Kleveno during her “whole relationship” with
defendant. K.O.’s testimony on direct examination is ambiguous regarding the status of her
relationship with Kleveno during the three weeks after she broke up with defendant. Nothing in
the text messages compels a conclusion that K.O. testified falsely on direct examination.
¶ 44 On cross-examination, K.O. acknowledged that she occasionally stayed at Kleveno’s house
in June 2015 and that she had discussions with defendant about her relationship with Kleveno.
K.O. also acknowledged that Kleveno told her to pick either him or defendant. From our review
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of the text messages that defendant relied on in support of his posttrial motion, K.O.’s testimony
on these points was consistent with the messages. Significantly, defense counsel never directly
asked K.O. whether she had a romantic or sexual relationship with Kleveno in the three weeks
after she broke up with defendant. Accordingly, nothing in the text messages compels a conclusion
that K.O. testified falsely on cross-examination.
¶ 45 The same holds true for Kleveno’s testimony. When the prosecutor asked Kleveno on
direct examination about the status of his relationship with K.O. on June 28, 2015, Kleveno
responded: “Just she had dropped off our daughter every other weekend, so what would you call
that?” Kleveno’s answer to this question was nonresponsive and possibly evasive but it was not
inconsistent with the text messages that defendant cited in his posttrial motion. Kleveno then
testified that he had an “amicable relationship” with K.O. as of June 28 but that she was not living
with him then. The text messages suggest that K.O. and Kleveno contemplated moving in together
in June 2015 and that she sometimes stayed at his house that month. Thus, Kleveno’s testimony
that he had an amicable relationship with K.O. on June 28 but that they did not live together was
consistent with the text messages. Kleveno never explicitly denied having a romantic or sexual
relationship with K.O in June 2015.
¶ 46 On cross-examination, defense counsel questioned Kleveno as to whether his relationship
with K.O. was “on and off throughout this period of time.” Kleveno asked defense counsel: “Prior
to this?” Defense counsel responded, “Yes.” Kleveno then testified that he and K.O. broke up
before K.O. started dating defendant and that “that was the end of it.” As was the case with the
prosecutor’s questioning of K.O., defense counsel’s questions of Kleveno were ambiguous as to
the timeframe that was relevant to the questions. One could reasonably interpret defense counsel’s
questions as asking whether Kleveno was romantically involved with K.O. while K.O. was dating
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defendant. It appears that Kleveno may have interpreted the questions that way. The text messages
that defendant cited in his posttrial motion did not establish that K.O. and Kleveno maintained a
romantic relationship while K.O. dated defendant. Thus, nothing in the text messages compels a
conclusion that Kleveno testified falsely on cross-examination.
¶ 47 Hale’s testimony at the evidentiary hearing on defendant’s posttrial motion likewise did
not compel a conclusion that either K.O. or Kleveno testified falsely at trial. As noted above,
Kleveno allegedly told Hale in a recent phone call that (1) Kleveno was engaged to K.O.
(presumably, currently—i.e., at the time of Hale’s phone conversation with Kleveno), (2) Kleveno
and K.O. were in a sexual relationship as of February 2015, (3) Kleveno and K.O. had an ongoing
romantic and sexual relationship, including when they were living together, and (4) Kleveno and
K.O. were in a romantic and sexual relationship both before and after the incident with defendant.
None of the statements that Hale attributed to Kleveno were irreconcilable with K.O.’s and
Kleveno’s trial testimony about the status of their relationship in June 2015. Additionally, it seems
that the trial court may not have attributed much weight to Hale’s testimony, as the court found
that defendant did not produce “sufficient evidence” to show that either K.O. or Kleveno lied at
trial. The trial court was justified in concluding that the statements that Kleveno made to Hale at
some unspecified “recent” time did not amount to clear and convincing evidence that Kleveno and
K.O. perjured themselves at trial. Even if the court found Hale’s testimony credible, however,
Hale’s testimony did not show that any representative of the State knew or had reason to know
that Kleveno or K.O. testified falsely.
¶ 48 Even if defendant had met his burden to provide clear and convincing proof that the State
knowingly offered perjured testimony or knowingly failed to correct perjured testimony, any error
was harmless beyond a reasonable doubt. The ultimate question is whether there was “any
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reasonable likelihood that the false testimony could have affected the jury’s verdict.” Olinger, 176
Ill. 2d at 349. Given that defendant opted for a bench trial and that the judge who found defendant
guilty also handled defendant’s posttrial motion, our analysis is straightforward. Obviously, there
is no likelihood that the allegedly false testimony would have affected the judge’s conclusions at
trial, as the judge reviewed the evidence that defendant submitted in support of the posttrial motion
and then denied the motion. See, e.g., People v. Dobbs, 353 Ill. App. 3d 817, 824 (2004) (“When
conducting a bench trial, the trial court is presumed to consider only admissible evidence. ***
This presumption is overcome, however, if it affirmatively appears from the record that improper
evidence was considered by the court.”).
¶ 49 Moreover, it was of marginal relevance, if any, whether K.O. and Kleveno had a romantic
or sexual relationship in the weeks after K.O. broke up with defendant. Defendant suggests that
this relationship might have provided a motive for K.O. to falsely accuse him. Specifically,
defendant asserts that K.O. might have “lied about the incident to convince Kleveno she did not
willingly go to defendant’s house to rekindle her relationship with [defendant].” It is difficult to
reconcile that theory with defendant’s assertion elsewhere in his brief that K.O. and Kleveno may
have “coordinated their testimony.” In one breath, defendant says that K.O. lied to deceive
Kleveno; in the next breath, defendant argues that K.O. and Kleveno were in cahoots. Defendant
is grasping at straws to show why K.O.’s relationship with Kleveno was relevant to this case.
¶ 50 Assuming that K.O.’s relationship with Kleveno was even marginally relevant, there was
already some evidence adduced at trial about what defendant calls a “love triangle.” On cross-
examination, K.O. admitted that, shortly before the events of June 28, 2015, she and defendant had
conversations focusing on her relationship with Kleveno. K.O. also acknowledged that Kleveno
told her to choose either him or defendant. Furthermore, the evidence showed that K.O. and
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Kleveno lived together at the time of trial. Kleveno even acknowledged on cross-examination that
he and K.O. were able to talk about “the case and what’s going on here today”—i.e. their trial
testimony. Thus, even if K.O. and Kleveno were not fully transparent in their trial testimony about
the status of their relationship in June 2015, and even if this were a relevant issue, it would not
have affected the result of the trial, given that there was already evidence at trial that K.O. found
herself in a “love triangle” in June 2015.
¶ 51 Finally, the evidence of defendant’s guilt was overwhelming. See People v. Lucas, 203 Ill.
2d 410, 423-24 (2002) (the State’s use of perjured testimony was harmless error where there was
overwhelming evidence of the defendant’s guilt); see also Nowicki, 385 Ill. App. 3d at 99.
Although witness credibility certainly played a large part in defendant’s trial, the evidence bearing
on that issue was not close. The physical evidence corroborated K.O.’s testimony about defendant
sexually assaulting and kidnapping her. For example, the police found K.O.’s cell phone lying in
the grass near the side of a road. They also found defendant’s gun at the bottom of a lake, three
bullets on his kitchen floor, and an open gun case on his bedroom floor.
¶ 52 Although defendant attempted to explain away this damaging evidence at trial, his
testimony was inherently implausible. For example, defendant’s claim that he and K.O. had
“makeup sex” on June 28, 2015, simply makes no sense, as he was in the middle of an argument
with K.O. at the time that was so heated that he subsequently felt compelled to throw her cell
phone out of a car window. Likewise, it makes no sense that defendant would eject three bullets
from his gun in K.O.’s presence if he did not mean to threaten her. Furthermore, defendant
admitted that he followed K.O. into the bathroom at one of the gas stations. Although defendant
said this was not uncommon for him, it certainly was not consistent with his claim that K.O. acted
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entirely of her own volition on June 28, 2015. These are just a few examples of the implausible
aspects of defendant’s testimony.
¶ 53 Aside from the implausibility of defendant’s testimony, he was also a convicted felon who
acknowledged lying to the police about the incident. Furthermore, the State introduced evidence
that defendant solicited a fellow inmate to murder K.O. See People v. Baptist, 76 Ill. 2d 19, 27
(1979) (evidence that the defendant attempted to kill eyewitnesses was admissible to show
consciousness of guilt). Defendant never denied this allegation.
¶ 54 The other evidence that defendant presented likewise did not meaningfully undermine
K.O.’s testimony. Two of defendant’s neighbors testified that they did not notice anything unusual
on June 28, 2015. One of the neighbors testified that, although he did not see defendant walking
from defendant’s house to K.O.’s car, he did see defendant entering K.O.’s car. This neighbor
testified that he did not see a gun in defendant’s hand at that point. K.O.’s testimony that defendant
kept the gun in his hand when they walked to her car and that he was “kind of *** waving it
around” was not necessarily inconsistent with the neighbors’ testimony, as neither neighbor
claimed to see defendant before the moment that he entered K.O.’s car. Furthermore, the neighbor
who testified that he did not see a gun in defendant’s hand acknowledged that he was not paying
“any particular attention” to defendant that day.
¶ 55 The gas station attendant’s testimony that she did not notice anything unusual on the day
in question likewise did not undermine K.O.’s credibility. K.O. did not claim that anything of note
happened at the gas station that the attendant could have observed (the gas station attendant could
not view the women’s bathroom from where she was standing).
¶ 56 Defendant introduced evidence that K.O.’s aunt told a police officer that K.O. called her
on the day of the incident, not the other way around. It seems that there may have been a
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miscommunication between K.O.’s aunt and the police officer, as it makes no sense that K.O.
would call her aunt on the phone just to say that she could not talk at the moment. At any rate, we
note that the extraction report of K.O.’s phone confirms that the call at issue came from the aunt’s
phone to K.O.’s phone.
¶ 57 Finally, a police officer testified in defendant’s case-in-chief that he had an opportunity to
view the surveillance video from the second gas station that K.O. and defendant went to on June
28, 2015. According to the officer, the video depicted a man in a Cubs jersey standing alone at
the counter. The officer’s description of what he saw on the surveillance video was consistent
with K.O.’s testimony. Specifically, K.O. testified that she placated defendant by assuring him
that they would rekindle their relationship. Defendant then threw his gun into a lake, and they
drove back to his home. K.O. explained that, on their way back to defendant’s home, they stopped
at the second gas station, where defendant got drinks for them. The police officer’s description of
what he saw on the surveillance video at the second gas station thus did not undermine K.O.’s
¶ 58 In summary, defendant failed to meet his initial burden to show that the State’s witnesses
provided false testimony at trial and that the prosecution knowingly failed to correct that false
testimony. Even assuming that defendant met his initial burden, any error was harmless beyond a
reasonable doubt because (1) this was a bench trial, so we do not have to speculate about how the
allegedly false testimony might have affected the outcome of the trial, (2) the status of K.O.’s
relationship with Kleveno at the time of the incident was of marginal relevance, if any, (3) there
was already evidence at trial suggesting that K.O. was involved in a “love triangle” in June 2015,
and (4) the evidence against defendant was overwhelming. Accordingly, the trial court’s
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conclusion that there was no due process violation was not against the manifest weight of the
evidence.
¶ 59 2. Ineffective Assistance of Counsel
¶ 60 In a closely related argument, defendant maintains that his trial counsel provided
ineffective assistance. According to defendant:
“Had counsel introduced the relevant text messages from the extraction report, he
could have shown directly that K.O. lied on the stand about the nature of her relationship
with Kleveno in June of 2015. *** He could have further shown that K.O.’s close romantic
relationship with Kleveno gave her motive to lie about the nature of her encounter with the
defendant on June 28.”
Defendant’s argument regarding the prejudice that he suffered echoes the argument that he made
in support of his due process claim. The State responds that defendant failed to meet his burden
under either prong of Strickland v. Washington, 466 U.S. 668 (1984).
¶ 61 To demonstrate a claim of ineffective assistance of counsel, a defendant must show that
(1) his counsel’s performance was deficient and (2) the deficient performance prejudiced the
defense. Strickland, 466 U.S. at 687. If the defendant fails to demonstrate prejudice, there is no
need to inquire as to the sufficiency of counsel’s performance. Strickland, 466 U.S. at 697.
Prejudice in this context means “a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694.
¶ 62 For the same reasons that we rejected defendant’s due process argument, we must reject
his ineffective assistance claim for his failure to establish prejudice. We need not consider the
sufficiency of defense counsel’s performance.
¶ 63 B. Armed Violence
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¶ 64 Defendant also challenges the sufficiency of the evidence supporting his armed-violence
conviction. Count VII of the indictment charged defendant as follows:
“That on or about June 28, 2015, *** DANIEL E PERKINS committed the offense
of ARMED VIOLENCE ***, in that said defendant, while armed with a Category I
weapon, a handgun, knowingly performed acts prohibited by 625 ILCS 5/4-103(a)(1),
Unlawful Possession of Converted Motor Vehicle, in that the defendant, a person not
entitled to possession of said vehicle, possessed a Nissan Pathfinder, *** knowing it to
have been converted.”
¶ 65 According to defendant, his armed-violence conviction must be reversed outright because
the trial evidence did not show that he “significantly interfered with K.O.’s possessory right over
her motor vehicle.” Defendant proposes that the prosecutor’s theory at trial—that defendant
commandeered K.O.’s car by forcing her to use it for his benefit—is incompatible with the law of
conversion, as “[a] person cannot simultaneously be in possession of her property and be deprived
of her right to possess the same property.” Even assuming the validity of the State’s theory,
defendant insists that he did not convert K.O.’s vehicle, given that (1) he spent less than two hours
in K.O.’s car, (2) K.O. remained in control of her car throughout the incident, and (3) K.O.
“possessed [the car] without any interference after the incident was over.” In presenting his
argument, defendant relies heavily on this court’s decision in People v. Sergey, 137 Ill. App. 3d
971 (1985). Defendant candidly acknowledges that Sergey “involved unique facts” and has
subsequently been distinguished by other cases “based on the absence of those unique facts.”
¶ 66 The State responds that, because defendant forced K.O. to drive her car at gunpoint while
defendant dictated their route, K.O.’s “right to possession and control was interfered with as much
as if she had been left at the side of the road while the defendant drove off.” The State maintains
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that the fact that defendant temporarily deprived K.O. of her car was sufficient to sustain his
conviction of armed violence. The State also cites People v. Reese, 2017 IL 120011, which
involved a charge of aggravated vehicular hijacking, and asks us to apply its holding here.
¶ 67 The relevant inquiry when assessing the sufficiency of the evidence is “whether, after
viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt.” (Emphasis in original.)
Jackson v. Virginia, 443 U.S. 307, 319 (1979); People v. McLaurin, 2020 IL 124563, ¶ 22.
Although defendant requests review under the Jackson standard, the State responds that de novo
review might be warranted because defendant raises a question of statutory interpretation. We
believe that the Jackson standard of review is appropriate here, as the parties do not dispute the
meaning of any statute and defendant does not ask us to adopt any broadly applicable legal rules.
Defendant merely contends that the facts presented did not prove that he converted K.O.’s car. We
note, however, that our analysis would be the same under any standard of review.
¶ 68 Section 32A-2(a) of the Criminal Code of 2012 provides that “[a] person commits armed
violence when, while armed with a dangerous weapon, he commits any felony defined by Illinois
Law,” except for certain specifically excluded offenses that are not relevant to this case. 720 ILCS
5/33A-2(a) (West 2014). Section 4-103 of the Illinois Vehicle Code provides that it is a Class 2
felony for “[a] person not entitled to the possession of a vehicle or essential part of a vehicle to
receive, possess, conceal, sell, dispose, or transfer it, knowing it to have been stolen or converted.”
625 ILCS 5/4-103(a)(1), (b) (West 2014). The phrase “stolen or converted” is in the disjunctive,
so courts have interpreted this language as giving rise to distinct legal theories. See People v.
Brand, 2020 IL App (1st) 171728, ¶ 40 (“[A] conviction under section 4-103(a) may be predicated
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on defendant possessing a vehicle, knowing that it was stolen, or on defendant possessing a vehicle,
knowing that it was converted.”).
¶ 69 There is no dispute that defendant was armed with a firearm on June 28, 2015. Thus, to
sustain defendant’s conviction of armed violence predicated on the possession of a converted
motor vehicle, the State had to prove that (1) defendant possessed K.O.’s car, (2) he was not
entitled to possess the car, and (3) he knew that the car was converted. Brand, 2020 IL App (1st)
171728, ¶ 40; Illinois Pattern Jury Instructions, Criminal, No. 23.35 (approved December 8, 2011).
Property is deemed “converted” if a person who is lawfully entitled to possession of it has been
wrongfully deprived of it. Illinois Pattern Jury Instructions, Criminal, No. 23.35a (approved
December 8, 2011) (hereinafter IPI Criminal No. 23.35a).
¶ 70 As defendant effectively concedes in his reply brief, the evidence, when construed in the
light most favorable to the State, plainly satisfied the elements of the uncharged offense of
aggravated vehicular hijacking. “A person commits vehicular hijacking when he or she knowingly
takes a motor vehicle from the person or the immediate presence of another by the use of force or
by threatening the imminent use of force.” 720 ILCS 5/18-3(a) (West 2018). The offense is
elevated to aggravated vehicular hijacking when the defendant “carries on or about his or her
person or is otherwise armed with a firearm.” 720 ILCS 5/18-4(a)(4) (West 2018). In Reese,
which was decided after defendant’s trial, our supreme court held that the act of threatening the
driver of a vehicle and ordering him or her to drive the vehicle satisfies the “taking” element of
the aggravated vehicular hijacking statute. Reese, 2017 IL 120011, ¶ 43.
¶ 71 Presumably, the State did not charge defendant with aggravated vehicular hijacking,
because such a charge was unavailable under the existing law when defendant was charged and
tried. Thus, the State charged defendant with armed violence predicated on possessing a converted
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motor vehicle. The parties have not cited, and we did not find, any case where the State theorized
that a defendant converted a car by forcing the owner of the car to drive it at gunpoint. For the
following reasons, we hold that the evidence was sufficient to support defendant’s armed-violence
conviction.
¶ 72 The first element that the State had to prove was that defendant “possessed” K.O.’s car on
June 28, 2015. We find instructive People v. Anderson, 188 Ill. 2d 384 (1999). The evidence in
that case showed that Mr. Anderson was shoplifting when he met another individual who had
recently stolen a car. The two men then used the stolen car to drive to other locations to shoplift
more goods and sell them. The men ultimately got in a high-speed chase with the police, and Mr.
Anderson was arrested as he fled from the passenger’s side of the stolen car. Anderson, 188 Ill.
2d at 387-88. The trial judge found Mr. Anderson guilty of possession of a stolen vehicle, even
though he did not personally steal the car and he never drove it. Anderson, 188 Ill. 2d at 388. Our
supreme court upheld the conviction, reasoning:
“[W]e believe that there was sufficient evidence presented for the trier of fact, the trial
judge in this case, to find defendant in possession of the stolen vehicle. Defendant was not
merely a passive occupant who did not know that the Trans Am was stolen. Rather,
defendant was actively engaged in using the stolen vehicle in furtherance of a criminal
venture for his personal benefit. Thus, based on all the evidence, defendant’s joint use of
the vehicle with the driver constituted possession of the vehicle within the meaning of the
statute.” Anderson, 188 Ill. 2d at 393.
¶ 73 Like Anderson, the evidence here supports a conclusion that defendant possessed K.O.’s
car on June 28, 2015, even though he did not personally drive the car. In the light most favorable
to the State, the evidence showed that defendant actively engaged in using K.O.’s car in furtherance
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of a criminal venture for his personal benefit. The evidence thus satisfied the first element of the
State’s conversion theory.
¶ 74 Defendant does not challenge the second element of the State’s theory—i.e., that he was
not entitled to possess K.O.’s car. In the light most favorable to the State, the evidence certainly
supported a conclusion that defendant had no right to possess K.O.’s car.
¶ 75 The final element is that defendant knew that the car he possessed was “converted.”
Although Sergey involved unique facts that are distinguishable, because (1) defendant relies
heavily on Sergey and (2) Sergey sheds light on what it means for a defendant to knowingly possess
a converted car, we will examine it in detail.
¶ 76 After a night of drinking, Mr. Sergey went to his employer’s property, which was used to
store cars and equipment. There were 30 to 50 cars on the property, most of which were owned
by Mr. Sergey’s employer. Apparently, unbeknownst to Mr. Sergey, some of the cars were owned
by a different person, Richard Schoenneman. Mr. Sergey noticed a 1977 Oldsmobile Cutlass with
the keys in the ignition. Assuming that the Cutlass belonged to his employer and that his employer
would not mind if he borrowed it, Mr. Sergey drove it to a tavern to get more beer (the State did
not rebut Mr. Sergey’s claim that his employer would have allowed him to borrow a car that night).
Approximately 20 minutes later, Mr. Sergey left the tavern and drove back to his employer’s
property. As he was doing so, he was pulled over by the police and arrested for drunk driving. As
it turned out, the Cutlass belonged to Schoenneman. The State charged Mr. Sergey with driving
under the influence of alcohol (DUI), possession of a converted motor vehicle, and theft. The trial
court found Mr. Sergey not guilty of theft but guilty of both DUI and possession of a converted
motor vehicle. Sergey, 137 Ill. App. 3d at 972-74.
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¶ 77 On appeal, Mr. Sergey argued that (1) “his use of the car, although without express
authorization, insufficiently interfered with the owner’s rights to constitute conversion” and
(2) “given the nature of his use and his reasonable belief that he was merely borrowing his
employer’s car, he could not have known his conduct constituted conversion.” Sergey, 137 Ill.
App. 3d at 974. We agreed and reversed defendant’s conviction of possession of a converted
motor vehicle.
¶ 78 Given that the term “converted” was not defined in the Illinois Vehicle Code and no court
had yet interpreted the term, 1 we deemed it “appropriate to consult the common law.” Sergey, 137
Ill. App. 3d at 974. We explained:
“Illinois 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. [Citations.] 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. [Citations.] Both the
Restatement [(Second) of Torts] and Prosser and Keeton’s 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.”
Sergey, 137 Ill. App. 3d at 975.
1 At the time of our decision in Sergey, there was no pattern jury instruction defining
“converted.”
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We also noted that, in a case decided in 1843, our supreme court determined that a defendant was
not liable to a plaintiff for civil conversion where the defendant, who was contracted to feed and
board a horse, rode that horse for 15 miles without any resulting harm to the horse. Sergey, 137
Ill. App. 3d at 975 (citing Johnson v. Weedman, 5 Ill. 495, 496-97 (1843)).
¶ 79 Applying the civil common law understanding of conversion to the facts at hand, we
concluded that Mr. Sergey did not violate section 4-103 of the Illinois Vehicle Code. We
explained:
“In the instant case there was no 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’s 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’s
chattel without his express permission at that time would constitute a criminal conversion.
Accordingly, we hold the defendant did not violate section 4-103 of the Illinois Vehicle
Code and reverse his conviction thereon.” Sergey, 137 Ill. App. 3d at 975-96.
¶ 80 We have repeatedly distinguished Sergey based on its unique facts. See People v. Gengler,
251 Ill. App. 3d 213, 222 (1993); People v. Pozdoll, 230 Ill. App. 3d 887, 889-90 (1992); People
v. Washington, 184 Ill. App. 3d 703, 709 (1989). We have clarified that “intent to permanently
deprive is not an element of the offense of possessing a stolen or converted motor vehicle.”
Gengler, 251 Ill. App. 3d at 221. We have also held that a defendant may convert a car for purposes
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of section 4-103(a)(1) of the Illinois Vehicle Code, even if he uses it for a period as brief as 15
minutes without damaging it. See Pozdoll, 230 Ill. App. 3d at 890 (“[W]e cannot agree with
defendant’s position that conversion cannot be found where there is only temporary use of property
without causing harm to it. To do so would ignore the element of implied consent present in the
Sergey case which reduced the borrower’s culpability.”). It is also clear from the post-Sergey case
law that, although the meaning of “converted” for purposes of section 4-103(a)(1) of the Illinois
Vehicle Code may be informed by the common law tort understanding of that term, criminal and
civil liability for conversion are not coextensive. See Gengler, 251 Ill. App. 3d at 222 (identifying
a hypothetical situation in which a person might be civilly but not criminally liable for conversion).
¶ 81 We hold that the evidence supported a conclusion that defendant knew that K.O.’s car was
converted. “Property has been ‘converted’ if a person lawfully entitled to possession of that
property has been wrongfully deprived of it.” IPI Criminal No. 23.35a. At trial, the State argued
that defendant wrongly deprived K.O. of the use of her property by commandeering her car at
gunpoint. The evidence, when construed in the light most favorable to the State, supported that
theory. Defendant deprived K.O. of the free use of her car for approximately two hours. Defendant
agreed to allow K.O. to return to defendant’s home, where they both knew that the police would
be waiting, only after she promised to rekindle her relationship with him. By any measure,
defendant’s conduct effectuated a major interference with K.O.’s use of her car. Forcing K.O. to
use her car against her will was at least as significant an interference with K.O.’s right to possess
the car as if defendant had simply taken her keys and driven away. Although we spoke in Sergey
about interferences that are “so egregious as to merit what is, in essence, a forced judicial sale of
the property” (Sergey, 137 Ill. App. 3d at 975), as noted above, after our decision in Sergey, we
affirmed a conviction for possession of a converted motor vehicle where (1) there was no damage
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to the car and (2) the defendant was apprehended within 15 minutes of the car’s disappearance.
See Pozdoll, 230 Ill. App. 3d at 890; see also Gengler, 251 Ill. App. 3d at 221 (intent to
permanently deprive is not an element of the offense of possessing a converted motor vehicle).
Under the circumstances, the trial court here was justified in finding that the “converted” element
of the State’s theory was satisfied.
¶ 82 For these reasons, we hold that there was sufficient evidence to sustain defendant’s
conviction of armed violence predicated on his possession of a converted motor vehicle.
¶ 83 III. CONCLUSION
¶ 84 For the reasons stated, we affirm the judgment of the circuit court of Kendall County.
¶ 85 Affirmed.
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No. 2-17-0963
Decision Under Review: Appeal from the Circuit Court of Kendall County, No. 15-CF-187; the Hon. Robert P. Pilmer, Judge, presiding.
Attorneys James E. Chadd, Thomas A. Lilien, and Fletcher P. Hamill, of For State Appellate Defender’s Office, of Elgin, for appellant. Appellant:
Attorneys Eric Weis, State’s Attorney, of Yorkville (Patrick Delfino, David for J. Robinson, and David E. Mannchen, of State’s Attorneys Appellee: Appellate Prosecutor’s Office, of counsel), for the People.
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2020 IL App (2d) 170963 (People v. Perkins) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.