NOTICE

Decision filed 09/22/16. The text of this decision may be NO. 5-15-0035 changed or corrected prior to the filing of a Peti ion for Rehearing or the disposition of IN THE the same.

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT ________________________________________________________________________

THE PEOPLE ex rel. MATTHEW HARTRICH, ) Appeal from the State's Attorney of Crawford County, Illinois, ) Circuit Court of ) Crawford County. Plaintiff-Appellee, ) ) v. ) No. 14-MR-20 ) 2010 HARLEY-DAVIDSON, ) ) Defendant ) Honorable ) Christopher L. Weber, (Petra Henderson, Claimant-Appellant). ) Judge, presiding. ________________________________________________________________________

JUSTICE CHAPMAN delivered the judgment of the court, with opinion. Justices Stewart and Cates concurred in the judgment and opinion.

OPINION

¶1 This appeal involves the application of the excessive fines clause of the eighth

amendment in the context of our State's civil forfeiture provisions. The claimant, Petra

Henderson, is the owner of a motorcycle valued at $35,000. Her husband, Mark

Henderson, was arrested while driving the motorcycle and charged with aggravated

driving while intoxicated and driving while his license was revoked. At the time of

Mark's arrest, Petra was a passenger on the motorcycle. She appeals an order of the trial

court finding the motorcycle subject to forfeiture. At issue is (1) whether the court

1 correctly determined that Petra consented to Mark's use of the motorcycle and (2)

whether the forfeiture violated the excessive fines clause. We conclude that the evidence

supports the court's finding that Mark used the motorcycle with Petra's consent.

However, we find that the forfeiture violated the excessive fines clause, and we reverse

on that basis.

¶2 Petra Henderson is the sole owner of a 2010 Harley-Davidson trike motorcycle.

Her husband, Mark, does not have an ownership interest in the motorcycle. On the

evening of April 25, 2014, Mark suggested to Petra that they go for a ride on the

motorcycle. At the time, Mark's driver's license had been revoked due to a previous

conviction for driving under the influence (DUI). Petra drove the motorcycle from the

couple's home in Robinson, Illinois, to a tavern in Oblong, Illinois. She then drove to

taverns in Lawrenceville and Palestine. Eventually, Petra drove to the Corner Place,

which is located approximately 12 blocks from the Hendersons' home in Robinson. Petra

did not drink any alcohol throughout the evening. Mark, however, had a lot to drink and

was intoxicated by the time he and Petra left the Corner Place shortly after midnight.

¶3 Mark insisted on driving home from the Corner Place. According to both Mark

and Petra, he jumped onto the motorcycle and told Petra that she could either ride home

with him or walk home. She rode home with him. During the short drive home,

Robinson police officer Dan Strauch activated his lights and siren to pull them over.

Instead of stopping, Mark drove home and parked in the Hendersons' driveway. A breath

test indicated that Mark's blood alcohol concentration (BAC) was 0.161. Officer Strauch

placed Mark under arrest.

2 ¶4 Mark was charged with aggravated DUI (625 ILCS 5/11-501(d) (West 2014)) and

driving while his license was suspended or revoked (625 ILCS 5/6-303 (West 2014)). He

subsequently pled guilty to the charge of aggravated DUI, and the State dismissed the

charge of driving while license revoked.

¶5 The State subsequently filed a request for preliminary review to determine

probable cause for forfeiture, a verified complaint for forfeiture, and an amended verified

complaint for forfeiture. The State alleged that the motorcycle was used with the

knowledge and consent of the owner in the offense of driving while license suspended or

revoked and that it was subject to forfeiture because the revocation was due to a prior

DUI conviction (625 ILCS 5/6-303(g) (West 2014)). In addition, the State alleged that

the motorcycle was used with the knowledge and consent of the owner in the offense of

aggravated DUI during a time in which the driver's license was revoked due to a prior

DUI conviction (720 ILCS 5/36-1(a)(6)(A)(i) (West 2014)).

¶6 The matter came for a hearing on December 3, 2014. Officer Dan Strauch

testified that he was on patrol in Robinson during the early morning hours of April 26,

2014. At approximately 12:30 a.m., he heard a motorcycle revving its engine in the

parking lot of the Corner Place Tavern. He described the sound of the motorcycle as a

"racing sound." He turned around and saw a black 2010 Harley-Davidson trike making a

"very wide" right turn onto Cherry Street. Officer Strauch testified that the motorcycle

then swerved, nearly hitting a telephone pole. At this point, he followed the motorcycle

and activated his lights to initiate a stop. However, the motorcycle did not stop, so

Officer Strauch also activated his siren. He testified that the motorcycle continued

3 driving, weaving back and forth, for approximately 12 blocks. It then turned left, drove

one more block, and pulled into a driveway.

¶7 Officer Strauch testified that Mark Henderson was driving the motorcycle and his

wife, Petra, was a passenger. The officer further testified that Mark "had a strong odor of

alcohol," poor balance, and slurred speech. Officer Strauch arrested Mark for DUI and

then spoke with Petra. Petra indicated that she was aware both that Mark was intoxicated

and that his license had been revoked. She also told Officer Strauch that she told Mark to

stop but he did not do so. Officer Strauch acknowledged that Petra did not specifically

tell him that she gave Mark permission to drive the motorcycle.

¶8 After Officer Strauch testified, the State rested, and Petra moved for a directed

verdict. She pointed to the officer's testimony that Petra told him "that she asked [Mark]

to stop, [and] that he didn't do so." She argued that this testimony demonstrated that she

did not consent to Mark's use of the motorcycle. The State argued in response that the

testimony should be construed to mean that Petra told Mark to stop "in response to the

police officer attempting to stop the vehicle." The court denied the motion.

¶9 Mark testified next. He first described the events leading up to his arrest. He

testified that he called Petra at work to ask if she wanted to go for a ride on the

motorcycle. Petra came home from work later than Mark, so Mark took the motorcycle

out of the garage before she arrived home. He then put the key fob used to start the

motorcycle in his pocket. He explained that the motorcycle did not require the use of a

key to start; rather, it could be started if the key fob was within 8 to 10 feet of the

motorcycle. Mark testified that he kept the fob in his pocket the entire evening. When

4 asked why, he explained, "You just don't think about it. You put it in your pocket and

go."

¶ 10 Mark was asked to describe the configuration of the seats on the motorcycle. He

responded, "It's a two-seater, front and back, and with a trike, the passenger gets on first

for comfortability [sic] of the driver getting on. If the driver would get on first, he would

have to lean, she would have to lean way over for the passenger to get on."

¶ 11 Mark further testified that he and Petra left their home in Robinson at around 6 in

the evening. They first drove to Oblong, Illinois. They next drove to Lawrenceville, then

Palestine, and finally, to the Corner Place in Robinson. Mark testified that Petra drove to

all those places. However, when they left the Corner Place, he asked Petra to let him

drive the motorcycle. He testified that she refused, telling him that he did not have a

valid license and that he was "too drunk." However, Mark testified, he jumped onto the

motorcycle and started the engine. He testified that Petra again told him he could not

drive, but he continued to rev the engine, and he told Petra that he was going to drive the

motorcycle home and she could either get on the back seat or walk home. At this point,

Petra got on the back seat.

¶ 12 On cross-examination, Mark was asked what, if anything, Petra did to try to stop

him from driving the motorcycle. He testified that there was nothing she could do to stop

him because he was stronger than her and had the key fob in his pocket.

¶ 13 Petra's testimony concerning the sequence of events was the same as Mark's. In

addition, she testified that she did not have anything to drink that night. She emphasized

5 that she never consented to Mark driving the motorcycle. She explained that the only

reason she rode home with Mark was she "just didn't want to walk home at that point."

¶ 14 Petra further testified that she was the sole owner of the motorcycle. She testified

that she purchased it for $35,000 and she was still making payments on it. She stated that

she had to continue to make payments after the motorcycle was seized. Petra testified

that although she owned the motorcycle, Mark performed maintenance on it as a hobby.

She acknowledged that when he worked on the motorcycle, Mark backed it out of the

garage onto the driveway. She explained that she believed this was permissible for him

to do because it did not involve driving on any public roadways. Finally, asked to

explain why she did not ask Mark to give her the key fob, Petra stated that she did not

think to do so. She explained that as long as they were together, she could start the

motorcycle if the fob remained in Mark's pocket.

¶ 15 The court announced its ruling from the bench. The court stated as follows:

"The entire issue is whether Ms. Henderson gave consent to Mr. Henderson to

drive this motorcycle, and it appears to me in this situation that actions speak

louder than words. Had Ms. Henderson not got on and Mr. Henderson took off, it

would be a lot easier for me to believe [their] testimony. However, as the State

pointed out, it is self-serving testimony. She got on the motorcycle and they took

off and the evidence is that they live about 12 blocks away so I don't think it

would have been–it's not as if they were out on the interstate 50 miles from home

where it would be impossible for her to find another way home, and so, therefore,

6 I doubt the testimony that has been presented by the claimants, and therefore I am

going to find in favor of the State."

¶ 16 The court entered a written order for forfeiture later the same day. Petra

subsequently filed a motion to reconsider, arguing both that the State failed to

demonstrate that she consented to Mark's use of the motorcycle and that the forfeiture

was excessive under the eighth amendment. The court denied the motion to reconsider.

This appeal followed.

¶ 17 Petra first challenges the court's finding that she consented to Mark driving the

motorcycle. In support of this claim, she argues that (1) the court erred in denying her

motion for a directed verdict and (2) the court erred in finding that the act of getting on

the back of the motorcycle constituted consent to Mark's driving. We reject both

contentions.

¶ 18 Forfeiture is an in rem proceeding against an item used in the commission of

certain enumerated offenses. The policy underlying our statutes allowing the forfeiture

of vehicles is to prevent "certain types of crimes when such vehicles are used in their

commission." People v. 1998 Lexus GS 300,

(2010). A vehicle

is subject to forfeiture if it is used with the knowledge and consent of the owner in the

commission or attempted commission of certain offenses. 720 ILCS 5/36-1(a) (West

2014). Pertinent for our purposes, a vehicle is subject to forfeiture if it is used to commit

the offense of DUI during a period of time in which the driver's license has been revoked

or suspended due to a prior DUI. 720 ILCS 5/36-1(a)(6)(A)(i) (West 2014).

7 ¶ 19 In this case, there was no dispute that the motorcycle was used in the commission

of an offense that made it subject to forfeiture. There was also no dispute that Petra had

knowledge of this use. The only factual question before the trial court was whether she

consented to this use.

¶ 20 As with other factual determinations, it is the function of the trial court to assess

the credibility of witnesses. People v. $5,970 United States Currency,

(1996). In addition, the court may "draw reasonable inferences and reach

conclusions to which the evidence lends itself." People v. One 1990 Chevrolet Suburban,

(1992). We will reverse the trial court's factual findings only if

they are against the manifest weight of the evidence. 1998 Lexus,

.

¶ 21 As previously stated, Petra's first argument is that the court erred in denying her

motion for a directed verdict. We disagree. We first note that by presenting evidence

after the court denied her motion, Petra forfeited her right to seek a directed verdict.

Heastie v. Roberts,

(2007). Moreover, we believe the court's ruling

was correct. A directed verdict is appropriate only if all of the evidence, viewed in the

light most favorable to the nonmoving party, "so overwhelmingly favors the movant that

no contrary verdict based on that evidence could ever stand."

(citing Pedrick v.

Peoria & Eastern R.R. Co.,

(1967)). That standard was not met in this

case.

¶ 22 Petra contends that she was entitled to a directed verdict at the end of the State's

case-in-chief because up to that point, the State did not meet "its burden of proof that the

motorcycle was used with the knowledge and consent of the owner, Petra Henderson."

8 Contrary to this argument, however, the State is only required to demonstrate that the

motorcycle was used in the commission of an offense that makes it subject to forfeiture.

720 ILCS 5/36-2(d) (West 2014); People v. 1991 Chevrolet Camaro,

(1993). Once the State establishes this fact, it is up to the owner of the vehicle

to demonstrate that it was used without her knowledge or consent. 720 ILCS 5/36-2(e)

(West 2014). Here, as noted, there was no dispute that the motorcycle was used in the

commission of a DUI. Thus, the State met its initial burden.

¶ 23 More importantly, the evidence presented did not so overwhelmingly favor Petra

that a contrary verdict could not stand. The fact that Petra rode as a passenger gave rise

to a reasonable inference that she did consent to Mark's driving, and there was nothing in

Officer Strauch's testimony that indicated Petra told him whether she gave Mark

permission to drive the motorcycle. We find that the court correctly determined that

Petra was not entitled to a directed verdict.

¶ 24 Petra's next argument is that the court erred in finding that her act of riding on the

motorcycle as a passenger constituted consent. This argument mischaracterizes the

court's finding. The court did not find that the act of riding on the motorcycle constituted

consent as a matter of law. Rather, the court found that Petra's testimony was not

credible, primarily due to the fact that she chose to ride on the motorcycle under the

circumstances presented. As stated previously, credibility determinations are a matter

within the province of the trial court ($5,970 United States Currency,

), and we will only reverse the court's factual findings if they are against the manifest

weight of the evidence (1998 Lexus,

). Petra argued to the trial

9 court that she felt she had no choice but to ride home with Mark because no woman

would want to walk 12 blocks home in Robinson after midnight. While this may be a

reasonable explanation, the court was not required to believe it. We will not substitute

our judgment for that of the trial court unless the evidence does not support the court's

determination. 1990 Chevrolet Suburban,

.

¶ 25 It is also worth noting that the court's credibility determination is supported by

additional evidence. Mark testified that due to the configuration of the motorcycle, the

passenger had to get on first. This contradicts Mark and Petra's claims that Mark jumped

on the motorcycle before Petra. In addition, Mark had control of the key fob at the time

of his arrest. Although the Hendersons offered an innocent explanation for this,

testifying that Mark pulled the motorcycle out of the garage and that Petra could start the

motorcycle as long as the fob was within close proximity of the motorcycle, the court

could have reasonably inferred that Mark was holding the fob because Petra permitted

him to drive the motorcycle. We conclude that the court's finding that Petra consented to

Mark's use of the motorcycle was supported by the evidence.

¶ 26 We turn our attention to Petra's eighth amendment arguments. She argues that the

forfeiture of the $35,000 motorcycle was constitutionally excessive under all the

circumstances of this case. We agree.

¶ 27 The eighth amendment to the United States Constitution prohibits the government

from imposing excessive fines as a form of punishment. Austin v. United States,

(1993). This prohibition is applicable in criminal proceedings and also

in civil proceedings that " 'advance punitive as well as remedial goals.' "

at 610

10 (quoting United States v. Halper,

(1989)). It is applicable in civil

forfeiture proceedings because such proceedings "serve, at least in part, to punish the

owner of the property subject to forfeiture." People v. One 2000 GMC,

(2005) (citing Austin,

).

¶ 28 A forfeiture violates the excessive fines clause if it is grossly disproportionate to

the gravity of the offense.

(citing United States v. Bajakajian,

(1998)). The Illinois Supreme Court has adopted a three-prong test to guide courts in

determining whether a forfeiture is constitutionally excessive. Under this test, we

consider:

" '(i) the inherent gravity of the offense compared with the harshness of the

penalty; (ii) whether the property was an integral part of the commission of the

crime; and (iii) whether the criminal activity involving the defendant property was

extensive in terms of time and/or spatial use.' " People ex rel. Waller v. 1989 Ford

F350 Truck,

(1994) (quoting United States v. Real Property

Located at 6625 Zumirez Drive,

(C.D. Cal. 1994)).

These factors are not exclusive, and the inquiry must be conducted on a case-by-case

basis. Id. at 90; 2000 GMC,

. We review de novo the trial court's

application of this constitutional test to the facts before it. 2000 GMC,

.

¶ 29 We first note that, as Petra points out, the trial court did not explicitly discuss any

of these three factors in its docket entry denying her motion to reconsider. The court did,

however, cite the Appellate Court, Second District, decision in 2000 GMC in support of

11 its conclusion that the forfeiture of Petra's $35,000 motorcycle was not constitutionally

excessive. There, the appellate court upheld the forfeiture of a $28,000 vehicle used by

its owner to commit the offenses of DUI and driving while license suspended. 2000

GMC,

. As we will discuss in more detail next, there is a

significant distinction between that case and the case before us–here, the offense was

committed by someone other than the owner of the motorcycle. Although this fact alone

is not always dispositive, for the reasons that follow, we find that a different result is

warranted here. We turn our attention to the three factors.

¶ 30 The first factor requires us to weigh the gravity of the offense against the

harshness of the penalty. In assessing the gravity of the offense, we must consider the

fact that Mark was driving erratically and posed a potential threat to the safety of anyone

who encountered him on the road that night. These public safety concerns elevate the

seriousness of the offense of DUI "and arguably set it apart from other nonviolent

offenses."

. In light of these same concerns, Illinois courts have long

recognized that driving with a revoked license is "one of the most serious driving

offenses one can commit absent bodily injury when the underlying revocation stems from

a DUI conviction." 1998 Lexus,

(citing Reynolds v. Edgar,

(1989)).

¶ 31 We must also consider, however, the fact that Petra was not the person who

committed the offense. This does not relieve Petra of responsibility under our forfeiture

statutes; as discussed previously, civil forfeiture statutes are applicable to vehicle owners

who knowingly consent to the use of their vehicles in the commission of crimes by

12 others. See Austin,

; 720 ILCS 5/36-1(a) (West 2014). Nevertheless, we

believe that in considering whether the forfeiture was excessive, the difference in

culpability between an offender and an acquiescing vehicle owner must be taken into

account. We also believe that in nearly all cases, the acquiescing owner will be less

culpable than the actual offender.

¶ 32 We find support for our holding in both federal and Illinois cases. The United

States Supreme Court explained in Austin that civil forfeiture as punishment for the

misconduct of others is premised "on the notion that the owner has been negligent in

allowing his property to be misused and that he is properly punished for that negligence."

Austin,

. Federal courts have held "that it is the individual culpability of a

claimant–i.e., the person who is actually punished by the [forfeiture]–which must be

considered in the excessiveness analysis." United States v. Ferro,

(9th Cir. 2012); see also von Hofe v. United States,

(2d Cir. 2007)

(distinguishing between the interest in property subject to forfeiture of a husband who

committed a drug offense and his wife, who "knowingly countenanced and allowed" the

offense but did not participate). Similarly, Illinois courts have held that a relevant

consideration in assessing the gravity of the offense is whether the claimant–in this case,

Petra–"was convicted, acquitted, or never charged with a criminal offense." 2000 GMC,

; People ex rel. Waller v. 1996 Saturn,

, 471-

72 (1998).

¶ 33 Here, Petra was not charged with DUI or driving while license revoked or any

other criminal offense that would make the motorcycle subject to forfeiture. For the

13 reasons discussed above, we find that her conduct was significantly less culpable than

that of Mark. With this in mind, we will now consider the harshness of the penalty.

¶ 34 Obviously, one key factor in assessing the harshness of the penalty is the value of

the forfeited property. See 2000 GMC,

. This includes both the

monetary value of the property and its intangible value. In this regard, courts have

recognized that the forfeiture of real estate is a harsher penalty than the forfeiture of

personal property, including vehicles.

Courts have also considered the impact of the

forfeiture on the claimant in light of the claimant's circumstances. See

(upholding a vehicle forfeiture but noting that it constituted a "severe penalty,"

particularly in light of the fact that the claimant was "a person of limited means and

assets").

¶ 35 This case involves personal property, a $35,000 motorcycle, and there is no

evidence in the record concerning Petra's general financial situation. However, the

monetary value of the motorcycle alone is sufficient to make the forfeiture a harsh

penalty. In 2000 GMC, the case relied upon by the trial court, the Appellate Court,

Second District, recognized that the forfeiture of a vehicle worth $28,000 was

"undeniably a severe penalty."

We agree with that assessment, and we note that the

value of the motorcycle at issue here is 25% higher than the value of the vehicle at issue

there. Thus, we find that the penalty involved in this case is particularly harsh.

¶ 36 In weighing this harsh penalty against the gravity of the offense, we must also

consider the remedial purposes of our forfeiture provisions, which is to keep impaired

drivers off the roads of this state. See 1998 Lexus,

; 2000

14 GMC,

. Even considering this remedial purpose, we find the

harshness of the penalty far exceeds the gravity of Petra's offense.

¶ 37 Before concluding that the penalty is grossly disproportionate to the offense,

however, we must consider the second factor–whether the property was integral to the

commission of the offense–and the third factor–whether use of the property in the

commission of the offense was extensive spatially and/or temporally. Both of these

factors "embody an instrumentality or nexus test." $5,970 United States Currency,

. Therefore, the question is whether the property at issue has "a

sufficiently close relationship to the illegal activity."

¶ 38 Petra concedes that the motorcycle was integral to Mark's offense of driving under

the influence, and we agree. Driving a vehicle is an element of Mark's offense. See 625

ILCS 5/11-501 (West 2014). This factor therefore weighs in favor of forfeiture.

¶ 39 The third factor–whether the criminal conduct involving the motorcycle was

extensive in time and space–concerns more than simply how long and how far Mark

drove the motorcycle. It also concerns the question of "whether the property played an

extensive or pervasive role in the commission of the crime." 1996 Saturn,

(citing Zumirez Drive,

). Here, the property obviously

played an extensive and pervasive role in the offense because, as just discussed, driving a

vehicle is an element of the offense of DUI. However, because this fact underpinned our

conclusion that the second factor favors forfeiture, a similar finding with respect to the

third factor would be duplicative. Thus, we do not find this aspect of the third factor to

be relevant in this case.

15 ¶ 40 We briefly address the more obvious aspect of the third factor–the time and

distance involved in Mark's offense of DUI. As we discussed earlier, Mark drove the

motorcycle 12 to 13 blocks from the Corner Place Tavern to the Hendersons' home. This

likely took only a few minutes. Considering there is generally at least some movement

involved in DUI, we do not believe this can be considered an extensive use of the vehicle

in terms of time and/or spatial use. Although we do not consider this factor to be

particularly significant under the facts of this case, we find that it weighs slightly against

forfeiture.

¶ 41 When we consider the three factors together, we find that the forfeiture of Petra's

motorcycle was grossly disproportionate to her conduct. As we discussed at length

earlier, the harshness of the forfeiture significantly outweighed the gravity of Petra's

conduct in acquiescing to Mark's use of the motorcycle. Our consideration of the second

and third factors does not alter this imbalance. We therefore conclude that the penalty is

constitutionally excessive under the eighth amendment. For this reason, we reverse the

trial court's order finding the motorcycle subject to forfeiture.

¶ 42 Reversed.

16

NO. 5-15-0035 IN THE APPELLATE COURT OF ILLINOIS FIFTH DISTRICT

THE PEOPLE ex rel. MATTHEW HARTRICH, ) Appeal from the State's Attorney of Crawford County, Illinois,) Circuit Court of ) Crawford County. Plaintiff-Appellee, ) ) v. ) No. 14-MR-20 ) 2010 HARLEY-DAVIDSON, ) ) Defendant ) Honorable ) Christopher L. Weber, (Petra Henderson, Claimant-Appellant). ) Judge, presiding. __________________________________________________________________________

Opinion Filed: September 22, 2016 __________________________________________________________________________

Justices: Honorable Melissa A. Chapman, J.

Honorable Bruce D. Stewart, J., and Honorable Judy L. Cates, J., Concur __________________________________________________________________________

Attorney Jon C. Anderson, Attorney at Law, 107 West Walnut Street, P.O. Box for 203, Robinson, IL 62454 Appellant __________________________________________________________________________

Attorneys Hon. Matthew Hartrich, State's Attorney, Crawford County for Courthouse, 105 Douglas Street, Robinson, IL 62454; Patrick Delfino, Appellee Director, Stephen E. Norris, Deputy Director, Patrick D. Daly, Staff Attorney, Office of the State's Attorneys Appellate Prosecutor, 730 East Illinois Highway 15, Suite 2, P.O. Box 2249, Mt. Vernon, IL 62864 __________________________________________________________________________