Opinion
1-24-0245
06-27-2024
In re D.W., a minor, v. D.W., Respondent-Appellant. The People of the State of Illinois, Petitioner-Appellee,
This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Cook County No.s 18JD925, 18JD926, 18JD927, 18JD928, and 18JD929 Honorable Terrence V. Sharkey, Judge, Presiding.
JUSTICE HOFFMAN delivered the judgment of the court. Presiding Justice Rochford and Justice Ocasio concurred in the judgment.
ORDER
HOFFMAN JUSTICE
¶ 1 Held: We affirmed the circuit court's judgment revoking the stay of the respondent's adult sentences and the orders imposing those sentences, finding that the State met its burden of proving by a preponderance of the evidence that the respondent committed a new offense of possession of a stolen motor vehicle.
¶ 2 The respondent, D.W., appeals from the judgment of the circuit court revoking the stay of his adult sentences in five extended juvenile jurisdiction (EJJ) proceedings and the orders imposing the adult sentences. The respondent argues that the State failed to meet its burden of proving by a preponderance of the evidence that he committed a new offense of possession of a stolen motor vehicle (PSMV). For the reasons which follow, we affirm.
¶ 3 In June and July 2018, the State filed eleven petitions for adjudication of wardship, charging the respondent with a variety of offenses committed when he was 17 years of age. Five of those petitions are relevant to this appeal. They include one count of Class X aggravated vehicular hijacking (18JD925), two counts of Class X armed robbery (18JD926 &18JD929), and two counts of Class 2 possession of a stolen motor vehicle (PSMV) (18JD927 and 18JD928). On the State's motion, the prosecution of each of the five cases and six others were designated EJJ proceedings under section 5-810 of the Juvenile Court Act (Act) (705 ILCS 405/5-810 (West 2018).
¶ 4 In October 2019, the parties reached a plea agreement under which the respondent would plead guilty to the offenses in eight of the cases, including the cases at issue in this appeal, in exchange for a juvenile sentence of commitment to the Illinois Department of Juvenile Justice (IDJJ) for a period not to exceed his 21st birthday and an adult sentence of fifteen years imprisonment for case 18JD929, which would be stayed pending the respondent's compliance with the conditions of his juvenile sentence. Under the plea agreement, the remaining seven cases would result in a "finding to stand," case closed. The court accepted the respondent's guilty pleas and later held a sentencing hearing in December 2019, following which the court sentenced the respondent in all eight cases to commitment to IDJJ for a period not to exceed his 21st birthday. For the conditional adult sentences, the court found that the State's recommendation of fifteen years was not enough considering the harm to the victims. The court set the conditional adult sentences as twenty-one years in prison for each of the three Class X cases and three years' imprisonment for each of the five Class 2 cases, with all eight sentences running concurrently. The court explained to the respondent that the adult sentences would be stayed and would not take effect unless he committed a new offense or otherwise violated the conditions of his juvenile sentences. In re D. W., 2023 IL App (1st) 211006, ¶ 3.
¶ 5 The respondent was released from IDJJ in January 2020 and was then due to serve a 11/2 year aftercare term expiring in July 2021. However, on October 17, 2020, the respondent was arrested and charged with a new PSMV offense. In March 2021, the State filed petitions in each of the respondent's eight cases, seeking a revocation of the stay of his adult sentences.
¶ 6 The respondent failed to appear for the hearing on the State's petitions, and the court issued a warrant for his arrest. Following several hearings at which the respondent failed to appear, the court heard the State's petitions with the respondent in absentia. At that hearing, the court heard the testimony of the State's witnesses, Officer Efrain Carreno and Christopher Bard, the general manager of Audi of Orland Park. Following the testimony of Officer Carreno and Baird, the State rested. Thereafter, defense counsel moved to dismiss the State's petitions. The court denied the motion, and the defense rested without presenting evidence.
¶ 7 Following arguments from counsel, the court found that the State had proven by a preponderance of the evidence that the respondent had committed a new PSMV offense and ordered that all of the previously stayed 21-year and 3-year adult sentences be executed. The respondent filed eight separate appeals, one for each of the eight cases in which an adult sentence was imposed.
¶ 8 This court consolidated the respondent's eight appeals, and on April 13. 2023, issued an opinion, affirming the circuit court's judgment in three of the cases and vacating the circuit court's judgment in the five cases which are the subject of this appeal and remanded those cases to the circuit court with directions that they could not proceed until the respondent has been admonished in each of the cases that he can be tried in absentia if he fails to appear. In re D.W., 2023 IL App (1st) 211006, ¶¶ 47-55.
¶ 9 On December 14, 2023, with the respondent present, the trial court admonished him that he could be tried in absentia if he failed to appear at the hearing on the State's petitions. On that same day, the trial court commenced a hearing on the State's petitions to revoke the stay of the respondent's adult sentences in cases 18JD925 (Class X aggravated vehicular hijacking), 18JD926 and 18DJ929 (Class X armed robbery), and 18JD927 and 18JD928 (Class 2 PSMV). Following the hearing, the trial court found that the State had proven by a preponderance of the evidence that the respondent had committed a new PSMV and granted the State's petitions to revoke the stay of the respondent's adult sentences as to cases 18JD925, 18JD926, 18JD927, 18JD928 and 18DJ929. The trial court entered an order in each case imposing the adult sentence that had been stayed. This appeal followed.
¶ 10 The respondent's sole argument on appeal is that the evidence adduced at his EJJ revocation of stay proceedings failed to establish by a preponderance of the evidence that he committed a new offense of PSMV. We disagree.
¶ 11 At the December 14, 2023, hearing on remand, the State again presented the testimony of Officer Carreno and Bard. Officer Carreno testified that, on October 17, 2020, at approximately 8:00 p.m., he and two other uniformed officers were on patrol in an unmarked Ford Explorer in the vicinity of 7800 South State Street and Indiana Avenue in Chicago when he saw a black sedan traveling eastbound at the intersection of 76th and Indiana with no headlights. The black sedan had a single occupant, the driver. A check of the black sedan's license plate number revealed that the vehicle had been stolen. After notifying the Office of Emergency Management and Communications of the black sedan's location and direction of travel, Officer Carreno and the other two officers followed the black sedan. Officer Carreno stated that, after the black sedan turned southbound onto 78th Street, he saw a white Audi with no license plates begin following behind the black sedan. Officer Carreno testified that he found the white Audi unusual because "it had no registration on it and it still had, like wrapping. It appeared to be from the factory." He stated that the wrapping, which looked like "white plastic" or "packaging," covered the doors, bumpers, and frame of the Audi. Both the black sedan and the Audi traveled north on Prairie from 78th Street, with the vehicle in which Officer Carreno was riding following from behind. When the white Audi was at approximately 7731 Prairie it suddenly began traveling in reverse. At that point, the vehicle in which Officer Carreno was riding was about 20 to 30 feet away. Officer Carreno testified that, as the Audi began traveling in reverse, he saw a black male wearing a black jacket with white fur around the hood exit from the driver's seat of the Audi and run toward the black sedan and get into the front passenger's seat. According to Officer Carreno, the individual he saw exit the Audi looked directly at him, allowing him to see the individual's face. Officer Carreno made an in-court identification of D.W. as the individual he saw exit the Audi and get into the black sedan. As the Audi traveled in reverse, it struck the front of the vehicle in which Officer Carreno and the other two officers were riding.
¶ 12 Officer Carreno testified that the black sedan fled northbound on Prairie and turned eastbound on 77th Street. He stated that he learned from a radio message that the vehicle had crashed near 79th and State. When Officer Carreno arrived at the scene of the crash, he saw the respondent being detained by other officers. He identified the respondent as the person he saw exit the Audi. Officer Carreno testified that the respondent asked him to retrieve his jacket. He stated that he found the jacket in an adjacent yard. It was the same black jacket with white fur that he saw the respondent wearing when he exited the Audi. According to Officer Carreno, when he returned with the jacket, the respondent acknowledged that it was his.
¶ 13 Officer Carreno testified that he was involved in the "processing" of the Audi. He stated that the VIN number of the Audi was WAIENAFY1L2118653. The Audi was not impounded, and, according to Officer Carreno, was "returned to the owner." When cross-examined, Officer Carreno admitted that he never spoke to anyone at the Audi dealership.
¶ 14 Bard testified that he is the general manager of Audi of Orland Park, and that part of his responsibilities include overseeing the shipment of new vehicles to the dealership. He stated that the dealership receives a shipment of new vehicles two to three times per week. Bard explained that, prior to delivery, he receives an electronic notification that includes the vehicles' model and VIN numbers, the date when the vehicles left port, and their expected delivery date. He stated that Audi USA contracts with several carriers to deliver vehicles to the various dealerships. One of those carriers is AGT Trucking. When a shipment of vehicles arrives at the dealership, a staff member conducts a visual inspection to verify that the shipment is correct and to verify that the vehicles were intended for Audi of Orland Park. According to Bard, when vehicles are delivered, they typically have "protective wrapping" to protect them from damage during shipping. He stated that Audi USA owns the vehicles until the dealership takes possession at which time ownership transfers to the dealership.
¶ 15 Bard testified that, on or about October 17, 2020, Audi of Orland Park was scheduled to receive four vehicles pursuant to a predelivery notification. As to those vehicles, AGT Trucking was designated by Audi USA as the carrier for delivery. According to Bard, one of the four vehicles to be delivered pursuant to the predelivery notification was a 2020 Audi Q5, VIN number WAIENAFY1L2118653. The respondent's' attorney interposed a hearsay objection to Bard's testimony as to the VIN number. The State indicated that the testimony was only being offered to "inform course of conduct" and not for the truth of the matter asserted. The trial court ruled that Bard's testimony as to the VIN number would only be admitted to show course of conduct and not as substantive evidence.
¶ 16 According to Bard, he was notified when AGT Trucking arrived at Audi of Orland Park with the four vehicles and that there was an "issue with the shipment." He testified that he personally went to the dealership to inspect the shipment and saw a 2020 Audi Q5 that had damage to the rear of the vehicle in several places. There was damage to the rear bumper, side marker lights, taillight assembly, and entire rear bumper cover. He also observed that "some" of the protective wrapping had been removed from the vehicle but "there was still some present."
¶ 17 On direct examination, Bard was asked: "Did you, as the - working for Audi USA at Audi Orland Park give anyone else permission to use the Audi Q5." He answered, "I did not." He stated that he did not give the respondent permission to use the vehicle. When cross-examined, Bard testified that, until the dealership took possession of the vehicle, it still belonged to Audi USA, and that Audi of Orland Park never took ownership of the damaged Audi Q5. He admitted that he did not personally know what happened to the vehicle prior to its arrival.
¶ 18 Following Bard's testimony the State rested. Defense counsel made a motion for a "directed finding of no violation" which the trial court denied. Thereafter the respondent rested without presenting evidence.
¶ 19 Following the arguments of counsel, the trial court recounted the testimony of Officer Carreno and Bard, both of whom it found credible. The trial court specifically stated that it did not consider the fact that the VIN number of the vehicle as testified to by Officer Carreno matched Bard's testimony concerning the VIN number of the vehicle that the dealership was to receive. The trial court did find that the damage to the rear of Audi Q5 that Bard observed was similar to the damage that could have happened when the Audi that the respondent had been driving backed up and hit the vehicle in which Officer Carreno was riding. The trial court found credible Officer Carreno's identification of the respondent as the person he observed exit the Audi from the driver's side as the vehicle was traveling in reverse and then get into a vehicle believed to have been stolen, specifically noting that Officer Carreno saw the respondent's face in his headlights, they made eye contact, and Officer Carreno was able to identify the respondent without his coat when he was detained at the location where the black sedan crashed. The trial court also found that evidence of flight may be considered to infer knowledge that the vehicle was stolen.
¶ 20 The trial court stated that "there is enough evidence on a preponderance level for me to find that the minor [D.W.] was, in fact, in possession of a stolen motor vehicle." Based on that finding, the trial court granted the State's motion to lift the stay of the respondent's adult sentences in all five cases.
¶ 21 On January 2, 2024, the trial court entered five sentencing orders, imposing the following terms of imprisonment on the respondent: 21 years in case 18JD925 (Class X aggravated vehicular hijacking), 21 years in case 18JD926 (Class X armed robbery), 3 years in case 18JD927 (Class 2 PSMV), 3 years in case 18JD928 (Class 2 PSMV), and 21 years in case 18JD929 (Class X armed robbery); to be served concurrently with each other and concurrently with the three sentences affirmed by this court in In re D.W., 2023 IL App (1st) 211006, ¶ 47.
¶ 22 In urging reversal of the orders granting the State's motion to lift the stay of his adult sentences in all five cases and imposing the adult sentence in each case, the respondent argues that the State failed to prove that he committed the offense of PSMV. Specifically, the respondent contends that the State failed to prove that he was not entitled to possess the white Audi that Officer Carreno saw him driving or that he knew that the vehicle was stolen.
¶ 23 In support of its motion to lift the stay of the adult sentences imposed upon the respondent in his EJJ proceeding, the State asserted that he had committed a new offense, PSMV. As the parties correctly acknowledge, the State had the burden of establishing by a preponderance of the evidence that the respondent committed the new offence. 705 ILCS 405/5-10(1)(b)(6) (West 2020). A proposition is proven by a preponderance of the evidence when the proposition to be proven is more probably true than not. See In re Arthur H., 212 Ill.2d 441, 464 (2004); In re N.B., 191 Ill.2d 338, 343 (2000).
¶ 24 An individual commits the offense of PSMV when he is in possession of a motor vehicle that he was not entitled to possess and that he knew was stolen. 625 ILCS 4/4-103(a) (2020); People v. Cox, 191 Ill.2d 378, 391 (2001). The respondent does not contest the fact that the evidence of record established that he was in possession of the white Audi. As noted earlier, he argues only that the State failed to prove that he was not entitled to possess the vehicle and that he knew that the vehicle was stolen.
¶ 25 The respondent contends that, "[t]ypically in PSMV cases, to prove that *** an accused was not entitled to possess a vehicle, evidence is usually presented from a person who is entitled to give permission, that the accused was not given permission, consent or some sort of authority to possess the vehicle at the time that it was taken." According to the respondent, there was no evidence from the owner of the white Audi or "anyone who was actually in a position to speak to who did or did not have permission over the car when it was taken." We believe that the flaw in the respondent's argument rests on his reliance on cases where the burden of proof was beyond a reasonable doubt. In this case, however, the State's burden of proof was a preponderance of the evidence.
¶ 26 Although the damage to the rear of Audi Q5 that Bard observed was similar to the damage that could have been sustained by backing up and hitting a following vehicle, there was no evidence that the white Audi which Officer Carreno observed the respondent driving was the same Audi Q5 that Bard testified was delivered to Audi of Orland Park with rear end damage. Nevertheless, we believe that Officer Carreno's testimony was sufficient to establish by a preponderance of the evidence that the respondent was not entitled to possess the white Audi he was seen driving, that the vehicle was stolen, and that the respondent knew that it was stolen.
¶ 27 Officer Carreno testified that he observed the respondent driving the white Audi. He stated that the vehicle had no license plates and had wrapping on the doors and bumpers like wrapping from the factory. Bard testified that, when new Audi's are delivered, they typically have "protective wrapping" to protect them from damage during shipping. Officer Carreno testified that he was in a vehicle with two other uniformed officers following the white Audi driven by the respondent when the respondent put the Audi in reverse, exited the vehicle, ran, and got into the black sedan, which then fled from the scene. The rear of the Audi struck the front of the vehicle in which the officers were riding, preventing them from giving chase. Additionally, Officer Carreno testified that, after the respondent was taken into custody, the Audi was "returned to the owner."
¶ 28 From these facts. one could reasonably conclude it is more likely true than not that the respondent was not entitled to possess the white Audi, that the vehicle was stolen, and that the respondent knew that it was stolen. Proof of circumstances that would induce a reasonable person to induce that a vehicle is stolen can support a finding that the person in possession of the vehicle knew that it was stolen. People v. Abdullah, 220 Ill.App.3d 687, 609-91 (1991). In this case, the respondent placed the Audi in reverse, causing it to collide with the officers' vehicle and fled the scene. As the trial court correctly noted, evidence of flight may be considered to infer that the respondent knew that the vehicle was stolen. People v. Whitfield, 214 Ill.App.3d 446, 454 (1991).
¶ 29 We believe that the circumstances surrounding the condition of the white Audi, the respondent's actions as testified to by Officer Carreno, and the respondent's flight are sufficient to support a reasonable conclusion that it is more likely than not that the white Audi that the respondent was driving was stolen and he knew that it was stolen. We find, therefore, that the trial court's determination that the State met its burden of proving by a preponderance of the evidence that the respondent committed a new offense of PSMV is not against the manifest weight of the evidence, as an opposite determination is not clearly apparent. See People v. Love, 404 Ill.App.3d 784, 787 (2010).
¶ 30 Based on the foregoing analysis, we affirm the trial court's orders revoking the stay of the respondent's adult sentences in cases 18JD925, 18JD926, 18JD927, 18JD928 and 18DJ929 and imposing the adult sentence in each of the five cases.
¶ 31 Affirmed.