*1 ILLINOIS, Plaintiff-Appellee, v. PEOPLE THE STATE OF THE OF al., Defendants-Appellants. NASH et KEVIN L. 3—95—0303, Third Nos. — 0304 cons. District 3—95 Opinion July filed HOLDRIDGE, P.J., dissenting. Pekin, (argued), appellants. L.
Robert Metzler (John Attorney, Bernabei, X. Breslin Rob- of Princeton Marc State’s (argued), Attorneys Appellate ert M. Hansen both of State’s Prosecutor’s Of- fice, counsel), People. for the JUSTICE opinion LYTTON delivered the of the court: charged Defendants Kevin L. Nash and Charles H. Calkins were 5(b) in separate complaints violating Buy- section of the Timber (225 735/5(b) (West Licensing 1992)), ers Act in that know- ingly appropriated *2 Meyers the timber of Dianne without her consent. The cases were January consolidated and a bench trial was held on 25, 1995. The days’ were convicted and sentenced to incarceration. We reverse.
I. FACTS At prosecution Johnson, the Tyra called as its first witness daughter Meyers. the of Dianne Johnson testified that fall the previous estate, Reviglio, the owner of the real Peter and defen- dant Charles Calkins Meyers’ property spoke Mey- came to and with ers, Johnson and her brother Trent requested Thomas. Calkins received through Meyers’ property get to walk to to the location where neighbor’s trees. Johnson testified that she and her brother offered the copy survey, men a of a but this offer was Reviglio declined. She did not tell Calkins and Meyers claimed land on the other side of the fence.
According Johnson, to Meyers telephoned Dianne later Calkins him confront because property. trees had been cut on her Calkins Meyers’ came to $100, home and pay Meyers offered to but refused. $200, Calkins then offered Later, which was also refused. Johnson and her brother a long Calkins, conversation with who said he had made an honest mistake. large Johnson testified that five oak Meyers’ trees were cut on property.
Trent Reviglio Thomas testified that he told and Calkins that the fence line property was not the line. Thomas stated that there were stakes, and one of the stakes was next to a wooden stake bright orange flag with Reviglio on it. Thomas offered and Calkins map, but declined Meyers’ the offer. After trees were cut down, Calkins claimed that it was mistake and that the trees were diseased. any signs Thomas had not seen of disease on the trees. cross-examination,
On adjoining Thomas testified that the neighbor Westphal. Westphal Meyers Joanne He never claimed 77 feet on the other side of the fence because this was plat public and thus knowledge. was
Joanne Westphal signed testified that selling she a deed Quality Wood, $2,500, on her Westphal, paid Inc. who was told Calkins that she property up owned the to the fence line. West- Dianne incident she was unaware that until this
phal stated the fence. Westphal’s land on side of Meyers claimed 77 feet of Walczynski, a conser- was Mark prosecution’s final witness Walczynski case. testi- assigned investigate police officer vation stumps did Meyers’ property and trees were cut on fied that five that Kevin Nash was diseased. He also stated appear not to be Wood, Inc., Gregory Nash is the Quality license holder agent. company’s authorized surveyed land in Hueneburg, Alfred who
The defense called standing line not cor- fence did Hueneburg stated that Meyers’ property extends 77 feet be- property line. respond with the the southern Hueneburg that he had marked yond the fence. testified an iron bar that sticks above property line with point of the inches, point with a railroad and the northern ground five or six flush with the roadway. spike spike in the center line of paint Hueneburg points marked these two said he road surface. destroyed in the ribbons, markers had been but he was sure the or interim. conveyed to strip had been
Hueneburg testified that the 77-foot measuring prop- deed. separate quitclaim in a Without itself, not determine the location erty could office. looking the recorder’s just line from at documents a timber scout testified that he was Charles Calkins Defendant *3 driving past prop- Wood, August he was Quality Inc. In him. He then called Joanne that interested erty when saw some trees actually negotiations. Gregory Nash into Westphal and entered Westphal. signed the contract with him her went Westphal told
Calkins testified that any that he had conversation way fence. Calkins denied all the to the owning land on Meyers Thomas about Meyers Dianne or Trent that he first learned Calkins claimed Westphal’s side of the fence. him, af- Meyers Dianne called strip when disputed 77-foot about the cut. ter the trees were trees be- cross-examination, prior to the Calkins testified
On Westphal’s and looked at cut, recorder’s office ing he went to the Westphal owned 80 acres. Joanne It indicated that deed. trees, he cut down the testified that before Kevin Nash
Defendant regarding the location Charles Calkins spoke only with he Nobody line. that the fence was boundary. Calkins said cut. Nash the trees had been strip until after the 77-foot mentioned stakes, just the fence. any boundary see that he did not testified stipulations presented two and the defense prosecution Reviglio would state First, testify, Peter if called to the court. August permission Calkins and he asked Trent Thomas for go Meyers’ property, permission given. Reviglio onto and Second, Calkins that the fence was the line. if called to testify, testify Dianne would that neither Calkins nor Nash any property. to cut trees on her guilty.
The court found
II. ANALYSIS
appeal,
primary
On
the defendants’
contention is that the State
beyond
its case
a reasonable doubt. When faced with a
challenge
sufficiency
inquiry
to the
the relevant
for a
whether,
viewing
court of review is
after
evidence
State, any
most
to the
favorable
rational
trier of fact could have
found the
beyond
essential elements of the offense
(1985).
Collins,
237, 261,
106 Ill. 2d
court
judgment
will not substitute its
for that of the trier of fact on
questions involving
weight
assigned
to be
evidence or the cred
ibility
of witnesses.
Campbell,
(1992).
N.E.2d
will
We
not disturb
conviction unless the
presented
unreasonable,
evidence
improbable,
at trial is "so
or so un
satisfactory
justify
as to
guilt.”
reasonable doubt of the defendant’s
Campbell,
Section
Buyers Licensing
5 of the Timber
Act states that it is
any
buyer
knowingly
unlawful for
willfully
ap
cut or
propriate any timber
without the consent of the timber
(West 1992).
nature,
By
very
ILCS
ordinarily
its
735/5
proven by
circumstantial evidence rather
than
direct evidence.
(1994).
Weiss,
present
"The State must
sufficient evidence from which an inference
knowledge
made,
can
any
be
inference must be based
established
pyramided
intervening
facts and not
inferences.”
Weiss,
3d at
"[l]ikelihood; reality or truth” appearance 1979)). (5th contrast, merely an "uncer- "possibility” In is ed. 1081 (5th Dictionary 1049 ed. thing may happen.” Black’s Law tain which 1979). Here, required the State was Meyers’ trees consciously they were Diane
were aware probability. a substantial or that this was argued "knowledge During closing argument, prosecutor judge The trial means knew or should have known.” this case to the issues of the defendants’ knowl- explicitly applied this standard ownership: and tree edge of location obligations in this case there are this what is involved "[W]ith you’re taking go that when court believes to further to be sure thing you’re doing right spot guess ***. I it in the one controlling [issue] on the known or should have known that’s *** surveyor’s there there markers were orange flag men post there with an on it. Now these not, way knowing, but it to me reason- it or I have no seems surveying land have seen it if able that closely enough should you have to make
to make the kinds of decisions added.) (Emphasis ***.” judge applied wrong standard and the State
The trial proof. meet its burden commonly
The term "knew or should have known” is used cases; however, equated requisite it should not be civil "Knowledge” prosecutions. in criminal mental state of "Knowledge” involves con is not the same as "should have known.” (West (720 1992)), "should have ILCS while scious awareness 5/4—5 care which a reasonable implicates "the standard of known” mental states of pertains therefore to the lesser would exercise” and (West (720 1992); 6, 4—7 "negligence” "recklessness” and 5/4— (1967)). 161,163 Higgins, 86 Ill. 2d statutory "knowledge” and Applying correct definition of circumstances, standard the "knew or should have known” 1 Incertain cases; however, applies situations may applied in none of these be criminal may have known” where: A consider what a defendant "should here. court (1) knowledge, such as requisite less than that of mental state is (West (see 1992); negligence 720 ILCS 4—7 recklessness or 5/4 — (1990); Whiters, N.E.2d Ill. (1990)); Wilson, expressly know” or "should uses "should the statute Smith, App. 3d language (People known” Halmon, (1994); People v. N.E.2d (1992)); 1182, 1195
987 prosecution, light most favorable to reviewing the evidence Westphal established of Trent Thomas and Joanne that a conflict existed as to the location that the defendants knew however, knowl- boundary. In the absence of additional edge merely gave possibil- to an awareness of the dispute of this rise than the ity belonged to Dianne rather the trees may have probability substantial of this fact. While the defendants obliged investigate cutting, their failure to do been further before liability culpability than criminal based so is an issue of civil rather knowledge. way that he had "no The trier of fact’s statement knowing” marker requisite failed to meet its burden of confirmed the State knowledge. element of defendants’
(3) charged contempt (People the defendant is of court v. Zi 1051, 1057, 385, (1984); poryn, App. People 121 Ill. 3d 460 N.E.2d 390 922, 928, 1010, (1983)); Halprin, App. v. 119 Ill. 3d 457 N.E.2d 1014 (4) neglecting the defendant is accused of his or her common law duty Stanciel, 218, 236-37, parent (People as a v. 606 N.E.2d 1201, (1992)); (5) following conviction, determining applicability when Pasch, aggravation sentencing certain in (People factors at v. 152 Ill. 294, (1992); Calva, People 2d 604 N.E.2d v. 256 Ill. (1993)). 856, 3d 628 N.E.2d may applied The "knew or should have known” standard also be to others case, participating police attorneys, in a criminal such as officers and when determining propriety Perkins, People of their actions. See (investigating authorities they played knew or should have known that "the ruse on defendant” was likely incriminating response right to evoke an after defendant had invoked counsel); Sanchez, (1989) (police building 516-17 knew or should have known that searched was warrant); Lee, different from the address on (1989)(defense adequate counsel failed to make an opening statement; prior counsel knew or should have known be). what the evidence would foregoing application
In none of the situations does the of the "should have known” standard alter the 4—5 of definition of section (West 1992). the Criminal Code. 720 ILCS 5/4—5
III. CONCLUSION County judgment The of the circuit court of Bureau is reversed. Reversed. J.,
SLATER, concurs. HOLDRIDGE, dissenting: PRESIDING JUSTICE respectfully majority’s dissent from the reversal charged defendants’ convictions. defendants were with know ingly timber without the consent of the timber added.) (Michie 1995). (Emphasis Knowledge 225 ILCS Ann. 735/5 generally refers to an make awareness existence of facts which Gean, an individual’s conduct unlawful.
(1991). disagree majority’s finding *6 prove knowingly acted in an manner. defendants unlawful evidence, challenged insufficiency a claim of of it is
When
reviewing
the
of the
court to examine the
function
evidence
any
light
People
the
and determine whether
most favorable
to
the
rational
trier of fact could have found the essential elements of
Collins,
beyond
crime
applies
regardless
to all criminal cases
of
standard
Schott,
the nature of the
(People
evidence
(1991)),
grounds
a
criminal conviction will not be overturned on
improbable
unsatis
of insufficient evidence unless the
is so
or
factory
guilt.
that
it
a reasonable doubt of defendant’s
Col
creates
lins,
As the by circumstantial and there must be sufficient evidence Weiss, knowledge from which an inference of can be made. (1994). believe, however, that a 3d 725 I review from record under the Collins standard shows sufficient evidence properly fact could have inferred that the which rational trier of was unlawful. defendants knew their conduct the cut down five trees. The evidence established that defendants extended 77 feet strip The trees were located on a of land that five proxim- located within close west of a fenceline. Two of the trees were fence, fence, feet ity approximately the two were west the fence. The approximately fifth tree was 75 feet west of and the titled, by growing land which the trees were strip 77-foot deed, Meyers. quitclaim to Dianne recorded son, Thomas, approximately one week Meyers’ testified that Trent down, Reviglio and Peter being cut he told Calkins prior to the trees that he told property line. He testified was not the that fenceline of the fenceline al- property extended west them that his mother’s her though not state how far west of the fenceline he did extended. stakes told them that there were
Thomas also testified that he marking boundary He told Calkins that the true line. Reviglio recently surveyed been and he offered Calkins
survey map. Thomas also testified map, but would not take the showing survey that there fact were markers west of the fenceline sister, Tyra where the actual line was located. Thomas’ Johnson, testimony. corroborated most of her brother’s being by that his mother owned the
Calkins denied Thomas being survey map by land west of the fenceline and denied offered Reviglio, testify, parties stipulated Thomas. The that if called to testimony. would corroborated Calkins’ I that a trier fact have concluded be- believe rationale could yond a reasonable doubt that that the trees knew by Meyers. cut were on land owned Diane The established that the true was marked west of the fenceline and that the defendants cut that also trees east of line. established, through Johnson, Thomas and Meyers’ property beyond Calkins was told that extended the fence- survey line and map was offered it. viewing
When these facts most favorable to the People, a rational trier of properly fact could infer from these facts knowingly that the defendants cut without the review, the timber As that is the standard of believe should be convictions affirmed. majority, Like am troubled the trial court’s statements after the majority verdict was rendered. The seems hold that trial court’s statement have known the should *7 survey present finding guilt stakes a is inconsistent with of be- yond and, therefore, reasonable doubt guilty by agree. appropriate standard. I would not
In order to reverse conviction based statements made rendered, judge after the actions verdict has been the statements and judge legal uncertainty of the de must establish a as to whether guilty beyond Olson, fendant was Olson, court, having In the trial found the guilty following separate defendant oc bench stated on three sentencing hearing casions at the that "he did not know whether de perpetrator fendant was the at 244. In of the crime.” 3 Ill. reversing conviction, appellate court noted that the contra- victim, plausible dieted the defendant’s alibi wit nesses, "along judge,” and actions of the trial statements led guilt unsatisfactory to the conclusion that "the of so as to justify guilt.” a reasonable doubt of 3d at 245. judice,
In the matter sub the trial court used the term "should known” when it discussed knowl whether defendants had fact, i.e., edge specific they actually survey one expresses I stakes. do not believe that this statement sufficient doubt knowledge necessary as to the element of to reverse a conviction. See Denton, (appellate also 409-10 court found the trier of fact had reasonable doubt about an element of the offense and reversed the conviction where the trial court stated that it had doubts as to whether the defendant had the intent to kill harm, great bodily yet or do convicted defendant of intentional murder). merely
I believe that this matter the trial court was careless legal terminology, use of and do not believe that the careless phrase proper turn of a is sufficient to overcome a review evi- affirm dence under the Collins standard. would therefore the trial finding guilt. court’s (Dana C.M., Gorman, Department
In re a Minor L. Guardian Adm’r of the Services, Family Petitioner-Appellant). J.E.B., Children and a Minor re— In (Dana Gorman, Department Guardian Adm’r of the L. Children Services,
Family Petitioner-Appellant). 3—95—0651, Third District — 0694 Nos. cons. 3—95 August Opinion filed