author: JUSTICE CAMPBELL JUSTICE MANNING,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOSEPH D. WEHRWEIN, Defendant-Appellant.
    First District (1st Division)
    No. 1-87-2602
    Opinion filed November 5, 1990.
    Rehearing denied March 21, 1991.

      MANNING, J., dissenting.
    Genson, Steinback & Gillespie, of Chicago (Edward M. Genson and Terence R Gillespie, of counsel), for appellant.

      Richard M. Daley, State’s Attorney, of Chicago (Inge Fryklund, James E. Fitzgerald, and Sharon L. Heath, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE CAMPBELL

delivered the opinion of the court:

The defendant, Joseph Wehrwein, was arrested and charged with possessing a certificate of title without complete assignment, in violation of section 4 — 104(a)(2) of the Illinois Vehicle Code (Ill. Rev. Stat. 1987, ch. 95½, par. 4 — 104(a)(2)). Following a bench trial in the circuit court of Cook County, the defendant was convicted of that offense, a Class 4 felony. Because the defendant had two prior felony convictions, for possession of a stolen motor vehicle and for unlawful use of a weapon, he was sentenced to an extended term of 3Vz years’ imprisonment, to run concurrently with his sentence for the possession of a stolen motor vehicle conviction. The defendant now appeals his conviction to this court. We affirm.

The defendant’s trial took place on July 21, 1987, and August 10, 1987. At trial, the State presented Timothy Yearwood as its first witness. Yearwood testified that on September 10, 1986, he met the defendant at the Photon Truck Driving School, where the defendant was employed, in order to purchase a truck from the defendant. Year-wood and the defendant then drove from the Photon School to a nearby truck yard, which also belonged to the Photon School. Year-wood explained that the defendant kept his truck at the Photon truck yard. While they were in the yard, Yearwood said, he and the defendant read over a contract for the sale of the truck. The contract specified that Yearwood was to pay $7,000 for the truck, in monthly installments of $1,000. Yearwood gave the defendant the first $1,000 payment, in exchange for the truck, title to the truck, and a copy of the sale contract.

Yearwood then testified that when he received title to the truck, the only name that appeared on the title was that of Kulas Czeslaw. The sale contract between Yearwood and the defendant, however, stipulated that Yearwood was to list the defendant as a lien holder on the certificate of title. Yearwood admitted that he never wrote the defendant’s name on the certificate. Yearwood also testified that in early October 1986 he took the truck to the Chicago police department, so that they could inspect it, and informed the officers that he had purchased the truck from the defendant. Yearwood never explained to the court why he took the truck to the police department. Apparently, although it is not clear from the record, the officers allowed Yearwood to take the truck home, but kept the title to the truck. Yearwood said he kept the truck for approximately one month and a half, and then asked the defendant to retake possession of the truck because he could not afford the monthly payments. The defendant took possession of the truck on October 15, 1986. Yearwood later signed a release of the previous agreement that he had with the defendant. On cross-examination, Yearwood said that he never asked the defendant why Kulas Czeslaw’s name was on the title.

Detective John Miller was the State’s next witness. Miller testified that he was employed as a detective by the City of Chicago in the auto theft division of the police department. Miller said that on or around October 1, 1986, he had a telephone conversation with Year-wood concerning an engine that Yearwood had reported stolen. Miller had telephoned Yearwood to tell him that the police department had recovered the engine, and Yearwood mentioned to Miller that he had purchased a truck from the defendant. Miller then asked Yearwood to bring the truck to the police station so that he could inspect it. Miller said that Yearwood brought the truck, the certificate of title, and the sale contract to the police station. Miller noticed that the front of the certificate of title showed that Kulas Czeslaw was the title holder and had purchased the vehicle on October 20, 1983. The back of the certificate of title contained Czeslaw’s signature and showed that Czeslaw had sold the vehicle on November 3, 1984, but did not indicate to whom he had sold it.

Miller and a partner then proceeded to the Photon Driving School on October 23, 1986, in order to talk with the defendant. Miller said that when he and his partner walked in the front door of the school, they saw the defendant behind a counter. The officers identified themselves to the defendant and asked him if he wanted to step outside, since there were students in and around the immediate vicinity. The defendant accompanied the officers outside, and Miller showed the truck title to the defendant. The defendant admitted that he had sold Yearwood the truck and said that he had asked Yearwood to insert his name on the title as lien holder. The officers then arrested the defendant and gave him his Miranda warnings.

Following Miller’s testimony, the State rested. The defendant moved for a directed finding of acquittal, which the trial court denied. The defendant then took the stand in his own behalf.

The defendant testified that he had purchased the truck at issue in December 1984 from Len Adams. The defendant said that he did not know Kulas Czeslaw. The defendant also said that he did not know that the back of the certificate of title had to be completed and did not know how to complete a title. Nonetheless, before the defendant sold the truck to Yearwood, he asked his attorney to draw up a sales contract. The defendant testified that when he sold the truck to Yearwood, he gave Yearwood the certificate of title, but did not fill out the title because he was unaware that he was required to do so. The defendant also testified that Yearwood was supposed to put his name on the title as lien holder. Finally, the defendant testified that he did not know it was against the law to have an incomplete title.

On cross-examination, the defendant said that the truck involved in this case was not the first truck that he had purchased. The defendant testified that he never notified the Secretary of State or the Department of Revenue when he bought the truck and was not aware that there was a State sales tax on vehicle purchases. Defendant admitted that he knew he was buying a truck from someone not listed on the certificate of title, and also admitted that he did not write the odometer reading on the title or put his name on the title as lien holder. On redirect examination, the defendant stated that he had never notified the Secretary of State or the Department of Revenue when he bought or sold a vehicle.

The defense rested following the defendant’s testimony. As noted, the court found the defendant guilty of possession of a certificate of title without complete assignment and sentenced him to an extended term of SVz years’ imprisonment.

On appeal, the defendant first contends that the statute at issue in this case is unconstitutionally vague both on its face and as applied. The defendant claims that the statute is vague on its face because it fails to provide a person with notice of what conduct it proscribes. The defendant argues that the elements of the offense were unclear because the statute failed to define the terms “possess,” “complete,” or “assignment,” and also because it failed to specify a mens rea requirement. The defendant also contends that the statute failed to delineate a person’s duties or obligations under the statute. Because the statute is vague, the defendant argues, it encourages arbitrary enforcement and abuse of discretion in determining whether a person has violated the statute.

In response, the State maintains that the statute here is clear and precise and comports with due process requirements. The State contends that an examination of the statute as a whole reveals a precise scheme for controlling and regulating the acquisition and disposition of motor vehicles. The State alleges that this statutory scheme clearly delineates what an individual must do with a certificate of title when he purchases or sells a motor vehicle. Further, the State argues that the words “possess,” “complete,” and “assignment” must be given their ordinary and popular meanings; thus, the statute is not vague merely because it fails to define those terms. Finally, the State contends that a mental state is implicit in the statute because the statute must be construed with reference to the Illinois Criminal Code of 1961, which sets forth intent, knowledge or recklessness as the applicable mental states.

It is well settled that when addressing challenges to the constitutionality of a statute, the statute is presumed constitutional and all reasonable doubts must be resolved in favor of upholding the statute’s validity. (People v. McPherson (1978), 65 Ill. App. 3d 772, 774, 382 N.E.2d 858, 860; see also People v. La Pointe (1981), 88 Ill. 2d 482, 499, 431 N.E.2d 344, 352; People v. Ortega (1982), 106 Ill. App. 3d 1018, 1023, 436 N.E.2d 606, 610.) A court’s primary consideration in construing a statute is to give effect to the legislature’s intent by examining not only the language used in the statute, but also the reason for the law and the evil intended to be remedied. (La Pointe, 88 Ill. 2d at 499, 431 N.E.2d at 352; McPherson, 65 Ill. App. 3d at 774, 382 N.E.2d at 860.) When a statute is challenged as vague, a court will assume that the words used in the statute have their ordinary and popularly understood meanings, absent a contrary legislative intent. LaPointe, 88 Ill. 2d at 499, 431 N.E.2d at 352; McPherson, 65 Ill. App. 3d at 775, 382 N.E.2d at 860.

A statute is void for vagueness if its prohibitions are not clearly defined. (Grayned v. City of Rockford (1972), 408 U.S. 104, 108, 33 L. Ed. 2d 222, 227, 92 S. Ct. 2294, 2298.) A vague statute fails to provide a person of ordinary intelligence with notice that his conduct is prohibited and also encourages arbitrary and discriminatory enforcement. (Grayned, 408 U.S. at 108-09, 33 L. Ed. 2d at 227-28, 92 S. Ct. at 2298-99; Papachristou v. City of Jacksonville (1972), 405 U.S. 156, 162, 31 L. Ed. 2d 110, 115, 92 S. Ct. 839, 843.) To succeed in a vagueness challenge, one must show that a law is impermissibly vague in all of its applications. (Village of Hoffman Estates v. Flipside (1982), 455 U.S. 489, 497, 71 L. Ed. 2d 362, 371, 102 S. Ct. 1186, 1193.) Criminal statutes are held to a higher standard and must define the crime with “appropriate definiteness.” (Winters v. New York (1948), 333 U.S. 507, 515, 92 L. Ed. 840, 849, 68 S. Ct. 665, 670.) A criminal statute is vague if it fails to provide sufficient notice of what conduct is forbidden (People v. Gurell (1983), 98 Ill. 2d 194, 207, 456 N.E.2d 18, 23), and fails to provide ascertainable standards of guilt (Winters, 333 U.S. at 515, 92 L. Ed. at 849, 68 S. Ct. at 670). Nonetheless, impossible standards of specificity are not required. Grayned, 408 U.S. at 110, 33 L. Ed. 2d at 228-29, 92 S. Ct. at 2300; Gurell, 98 Ill. 2d at 207, 456 N.E.2d at 23.

The statute at issue in this case provides: “It is a violation of this Chapter for: *** [a] person to possess any manufacturers certificate of origin, salvage certificate, junking certificate, certificate of title, [or] display certificate without complete assignment.” (Ill. Rev. Stat. 1987, ch. 95½, par. 4 — 104(a)(2).) The defendant contends that the statute is vague because it does not define “possess,” “complete,” or “assignment.” Because these words are not defined, however, they must be given their ordinary and popularly understood meaning. (La Pointe, 88 Ill. 2d at 499, 431 N.E.2d at 352; McPherson, 65 Ill. App. 3d at 775, 382 N.E.2d at 860.) “Possess” is defined as “[t]o cause to own [or] hold *** such as property.” (American Heritage Dictionary 967 (2d ed. 1982).) “Complete” is defined as “[h]aving all necessary or normal parts, components or steps; entire.” (American Heritage Dictionary 301 (2d ed. 1982).) “Assignment” is defined as “[t]he transfer of a claim, right, interest, or property.” (American Heritage Dictionary 135 (2d ed. 1982).) According to the ordinary and popularly understood meanings of the words of the statute, the statute prohibits a person from owning or holding a certificate of title without taking all the necessary steps for transfer of the certificate. This statute is sufficiently definite to survive a vagueness challenge. Considering the words of the statute along with the reason for the law and the evil intended to be remedied, namely, motor vehicle theft, this court concludes that the statute provides a person of ordinary intelligence with notice that his conduct is prohibited.

In addition, the statute does not encourage arbitrary enforcement and an abuse of discretion. Police officers can arrest, and prosecutors can prosecute, only those who possess a certificate of title ■without complete assignment. There is no leeway for an officer to determine whether a person does or does not possess an incomplete certificate. This case is distinguishable from those cited by the defendant where courts found statutes did encourage arbitrary enforcement and abuse of discretion. Cf. Smith v. Goguen (1974), 415 U.S. 566, 39 L. Ed. 2d 605, 94 S. Ct. 1242 (statute subjecting one to criminal liability for treating flag of the United States contemptuously was unconstitutionally vague because it did not provide notice to defendant that having a small United States flag sewn on his trousers was prohibited); Papachristou, 405 U.S. 156, 31 L. Ed. 2d 110, 92 S. Ct. 839 (vagrancy ordinance was unconstitutionally vague because list of crimes was all inclusive and generalized, placing unfettered discretion to arrest in the hands of the police officers); Winters, 333 U.S. 507, 92 L. Ed. 840, 68 S. Ct. 665 (statute prohibiting distribution of magazine principally “made up of criminal news, police reports, or accounts of criminal deeds, or pictures, or stories of deeds of bloodshed, lust or crime” was unconstitutionally vague because the standard of guilt was impossible to define); McPherson, 65 Ill. App. 3d 772, 382 N.E.2d 858 (phrase “small quantities” in statute was unconstitutionally vague because interpretation of phrase was wholly subjective).

The defendant’s claim that the statute is vague because it lacks a mens rea requirement is also without merit. As noted by the State, when a statute does not prescribe the mental state applicable to an offense other than an absolute liability offense, the mental states of intent, knowledge or recklessness are applicable. (See Ill. Rev. Stat. 1987, ch. 38, pars. 4 — 3, 4 — 4, 4 — 5, 4 — 6.) In People v. Mills (1968), 40 Ill. 2d 4, 237 N.E.2d 697, the Illinois Supreme Court held that knowledge was an essential element of the crime of possession of narcotics, even though knowledge was never explicitly set forth in the statute as an element of the crime. Likewise in this case, knowledge was an essential element of possession, because the very term “possession” implies a “knowing possession.” (Emphasis in original.) See Mills, 40 Ill. 2d at 12, 237 N.E.2d at 702.

In arguing that the statute is unconstitutional, the defendant set forth in his brief some hypothetical examples which, he argues, demonstrate the unconstitutionality of the statute. This court, however, will not address these hypothetical examples. A party “who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others,” but instead must limit himself to the facts of the case at hand. (Village of Hoffman Estates, 455 U.S. at 495 & n.7, 71 L. Ed. 2d at 369 & n.7, 102 S. Ct. at 1191 & n.7.) Applying the statute to the facts of the case at hand, the statute is constitutional.

The defendant next alleges that the statute at issue is unconstitutional as applied to him because he was arbitrarily arrested and charged with violating the statute. This court disagrees. As noted, the statute does not provide a police officer with the discretion to determine whether a person has violated the statute. The statute clearly states that á violation occurs when one possesses a certificate of title without complete assignment. Because the defendant possessed the certificate here without complete assignment, the defendant had violated the statute and was properly arrested.

The defendant’s second contention on appeal is that he was denied due process of law because he was convicted of wholly passive conduct in not completing the certificate of title. The defendant relies upon the United States Supreme Court decision in Lambert v. California (1957), 355 U.S. 225, 2 L. Ed. 2d 228, 78 S. Ct. 240, in support of this argument. In Lambert, the City of Los Angeles, California, enacted an ordinance requiring a person who had been convicted of a crime punishable as a felony in California to register with the chief of police if he or she remained in the city for more than five days. The Court held that this statute violated due process because it regulated wholly passive conduct and a person would have no notice of his duty to register. Lambert, 355 U.S. 225, 2 L. Ed. 2d 228, 78 S. Ct. 240.

The State denies that the defendant’s case is analogous to the Lambert case. The State argues that the defendant cannot claim ignorance of the law as an excuse for his conduct because the defendant’s actions in selling the truck were not wholly passive. Further, the State distinguishes the present statute from the ordinance in Lambert, noting that this statute is a State statute, while the ordinance in Lambert was merely a city ordinance.

The defendant’s case is distinguishable from the Lambert case. The Court in Lambert noted that “circumstances which might move one to inquire as to the necessity of registration are completely lacking.” (355 U.S. at 229, 2 L. Ed. 2d at 232, 78 S. Ct. at 243.) In contrast, under the circumstances here, the defendant should have been put on notice as to the necessity of completing the certificate of title. The statute was, as argued by the State, part of a statutory scheme regulating the ownership and registration of motor vehicles. Further, the defendant admitted that he knew the name on his certificate of title was not the name of the man who sold him the vehicle. The defendant also knew enough to ask Yearwood to put his name on the certificate as lien holder. Under the circumstances here, the defendant cannot claim that his conduct was wholly passive or that he was denied due process of law.

The defendant next contends that the trial court erred in denying his motion for a directed finding of acquittal because the State failed to prove that he had an intent to violate the statute. The defendant claims that he believed the certificate of title was complete and that his transfer was proper. Further, the defendant claims that his good faith was apparent, since he had consulted with an attorney prior to the transfer. Accordingly, the defendant claims that his conviction should be reversed.

The State contends that the defendant waived this issue on appeal because he did not renew his motion for a directed finding at the close of all the evidence. Assuming, however, that the issue was not waived, the State argues that it did prove that the defendant had the requisite mens rea.

The determination of whether a defendant had the requisite intent is for the trier of fact. (People v. Allen (1983), 116 Ill. App. 3d 996, 1008, 452 N.E.2d 636, 645, aff’d in part & rev’d in part on other grounds (1985), 109 Ill. 2d 177, 486 N.E.2d 873.) Intent may be inferred from the actions of the accused, as well as from the surrounding circumstances and, when the facts in a case give rise to more than one inference, a reviewing court should not substitute its judgment for that of the trier of fact unless the inference accepted by the trier of fact is inherently impossible or unreasonable. (Allen, 116 Ill. App. 3d at 1008, 452 N.E.2d at 645.) The mental state of knowledge is ordinarily proven by circumstantial evidence, as opposed to direct proof. People v. Smith (1984), 124 Ill. App. 3d 243, 248, 464 N.E.2d 685, 688.

Here, the defendant admitted that he knew he was purchasing the truck from someone not listed on the certificate of title, yet he claimed that he believed the certificate of title was complete. In addition, despite the fact that the defendant had consulted with an attorney before selling his truck to Yearwood, the defendant never testified that the attorney examined the certificate of title itself or was aware that it was deficient, nor did the attorney testify in the case. Based on the facts of this case, the trier of fact’s conclusion that the defendant had the requisite intent was not so inherently impossible or unreasonable as to require reversal.

The defendant’s last issue on appeal is that the trial court erred in denying his motion to dismiss the indictment. According to the defendant, the indictment charged him with possessing an incomplete certificate of title on September 10, 1986. Defendant claims that he was not in possession of an incomplete certificate of title on that day, however, because he transferred the title to Yearwood on September 10. Therefore, the defendant contends that his conviction should be reversed.

The State responds that the defendant has waived this issue on appeal. In the alternative, the State argues that the defendant did possess the certificate of title on September 10, 1986, at least until the time he transferred the title to Yearwood.

The defendant’s argument is without merit. As the State argued, the defendant was in possession of an incomplete certificate of title on September 10, 1986. Although title passed to Yearwood on that date, until the exchange took place, it is undisputed that the defendant was in possession of the certificate.

Accordingly, for all of the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.

Judgment affirmed.

BUCKLEY, P.J., concurs.

JUSTICE MANNING,

dissenting:

I respectfully dissent. I disagree with that part of the majority’s holding which affirms the trial court’s finding that defendant possessed the requisite mens rea to violate the Illinois Vehicle Code (hereafter Act) (Ill. Rev. Stat. 1987, ch. 95½, par. 1 — 100 et seq.).

However, before I set forth the reasons for my disagreement, I will briefly address the State’s contention that the matter is waived on appeal on the grounds that defendant failed to renew his motion for a directed finding at the close of all the evidence. I would invoke the plain error doctrine (see People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124), because the error I perceive to be present here involves the State’s failure to prove an essential element of the offense. (In re Winship (1970), 397 U.S. 358, 364, 25 L. Ed. 2d 368, 375, 90 S. Ct. 1068, 1072-73.) Where such an error affects substantial rights of the defendant (107 Ill. 2d R. 615(a)), I would dispense with application of the waiver rule.

Concluding then that the issue is not waived, I begin by looking to the applicable portion of the Act, known and cited by the short title “Vehicle Title and Registration Law” (Ill. Rev. Stat. 1987, ch. 95½, pars. 2 — 121 et seq., 3 — 100 et seq., 4 — 100 et seq., 5 — 100 et seq.), which provides: “It is a violation of this Chapter for: *** [a] person to possess any *** certificate of title *** without complete assignment.” (Ill. Rev. Stat. 1987, ch. 95½, par. 4 — 104(a)(2).) Although not explicitly prescribed by statute, I agree with the majority that the mental states of intent, knowledge or recklessness are applicable. Ill. Rev. Stat. 1987, ch. 38, pars. 4 — 3, 4 — 4, 4 — 5, 4 — 6.

Consequently, as in all criminal cases, the burden is upon the State to prove each element of the offense beyond a reasonable doubt. I have searched the record. I find no indication that the State adequately addressed the issue of whether the defendant acted with the intent to violate the statute. (See People v. Yarbrough (1988), 166 Ill. App. 3d 782, 520 N.E.2d 1002.) To the contrary, in my opinion, the evidence presented by the prosecution to demonstrate that defendant knowingly possessed a certificate of title without complete assignment is insufficient to sustain his conviction. People v. Einoder (1980), 82 Ill. App. 3d 1079, 403 N.E.2d 641.

In the present case, the record reflects that an individual by the name of Czeslaw was shown on the certificate of title as the title holder, commencing October 20, 1983, the date on which he purchased the truck. The certificate also showed that Czeslaw subsequently sold the vehicle on November 3, 1984, but failed to reflect to whom he had sold it. Defendant testified that he purchased the vehicle from Len Adams in December 1984. However, there is no recordation of this transaction or Mr. Adams’ name on the certificate. Where a defendant denies intent to do wrong or knowledge that a wrong has been committed, his knowledge can be inferred from the surrounding facts and circumstances. (See People v. Williams (1976), 44 Ill. App. 3d 143, 358 N.E.2d 58.) Here, the surrounding facts and circumstances reveal that a vehicle may have been the subject of three or four sales transactions; yet, only one person’s name was reflected on the certificate of title. Thus, contrary to the majority’s conclusion, there is no evidence that defendant had notice as to the necessity of completing the certificate of title under the factual matrix here presented. The fact that defendant requested Yearwood to place his name on the certificate as lien holder substantiates his version that counsel had advised him how to perfect his rights under the sales contract (see Ill. Rev. Stat. 1987, ch. 95½, pars. 3 — 201, 3 — 202, 3 — 303), rather than how to complete the certificate of title.

I would find that the acts and declarations of defendant fail to demonstrate an objective to possess an incomplete title. A person acts with intent to accomplish a result or engage in conduct described by the statute when his conscious objective or purpose is to accomplish that result or engage in that conduct. (See Ill. Rev. Stat. 1987, ch. 38, par. 4 — 4; People v. Wooff (1970), 120 Ill. App. 2d 225, 256 N.E.2d 881.) In the instant matter, defendant met Yearwood at his place of employment to negotiate the sales transaction. He consulted with legal counsel and had a sales contract drawn up. Following receipt of $1,000, the first installment of the $7,000 purchase price, defendant delivered to Yearwood a copy of the sales contract, possession of the truck and the certificate of title. It seems to me that these actions evidence an intent on the part of defendant to complete the necessary steps to effectuate a legal agreement and transaction, rather than an intent to forego the requirements of the law. Moreover, when Year-wood informed defendant of his inability to make future payments, he retook possession of the vehicle and had Yearwood execute a release of the previous contract.

Consequently, I believe that the acts and declarations of defendant neither demonstrate a pattern of conduct relating to knowing possession nor infer defendant’s knowledge relating to the offense of possession of an incomplete title. Accordingly, I would conclude that because the State has presented clearly insufficient evidence (see People v. Meredith (1980), 86 Ill. App. 3d 1136, 409 N.E.2d 70 (which concluded that the appellate court can reverse a finding of fact if such finding was based on insufficient evidence or no evidence)) to prove intent or knowledge on the part of defendant, a key element of the offense, I would reverse the conviction.

      The defendant’s conviction for possession of a stolen motor vehicle was affirmed by this court in an earlier appeal. See People v. Wehrwein (1989), 190 Ill. App. 3d 35, 545 N.E.2d 1005.

      The record is unclear as to whether the original owner’s name was Kulas Czeslaw or Czeslaw Kulas. For purposes of this opinion, however, he will be referred to as Kulas Czeslaw.


source: Caselaw Access Project

author: JUSTICE O’CONNOR

license: Public Domain

text:
    STARLING YOUNG, JR., Plaintiff-Appellee, v. CHICAGO TRANSIT AUTHORITY, Defendant-Appellant.
    First District (1st Division)
    No. 1-89-1929
    Opinion filed December 17, 1990.
    Rehearing denied March 13, 1991.
    Modified opinion filed March 25, 1991.

      Flynn, Murphy & Ryan, of Chicago (Richard T. Ryan and Mark F. Smolens, of counsel), for appellant.
    French, Kezelis & Kominiarek, of Chicago (Richard G. French, James M. Hofert, Russell R Veldenz, and Patrick B. Cage, of counsel), for appellee.
   JUSTICE O’CONNOR

delivered the opinion of the court:

After a jury found the Chicago Transit Authority (CTA) liable for the injuries Starling Young (Young) sustained while a passenger on a CTA bus, the trial court entered judgment on the verdict. The CTA appeals the denial of its motion to dismiss, which was based upon an alleged affirmative defense of immunity, and in addition, claims prejudicial errors.

During the evening of December 4, 1977, Young, his brother Sheldon Young, and Reginald Granderson boarded a westbound Chicago Avenue CTA bus at Chicago Avenue and State Street in Chicago, Illinois. As the men entered the bus, two unidentified women also boarded. The two unidentified women were described as “an older woman” and “a younger woman.” Later, while the men and women were on the bus, one of the unidentified women shot Young in the neck. Thereafter, on November 30,1978, Young filed his lawsuit against the CTA for negligence.

Almost eight years after Young was shot, the Illinois legislature amended section 27 of the Metropolitan Transit Authority Act, and the amendment expressly states that September 24, 1985, was its “effective date.” Amended section 27 provides, in pertinent part:

“Neither the [Chicago Transit] Authority, the members of its Board nor its officers or employees shall be held liable for failure to provide a security or police force or, if a security or police force is provided, for *** failure to prevent the commission of crimes by fellow passengers or other third persons or for the failure to apprehend criminals.” (Ill. Rev. Stat. 1987, ch. 111⅔, par. 327.)

Pursuant to amended section 27, the CTA filed a motion to dismiss Young’s cause of action based upon its alleged immunity. On November 1,1988, the trial court denied the CTA’s motion to dismiss.

Also before trial, the trial court granted Young’s motion in limine to preclude evidence that Young allegedly “consumed alcohol and/or was ejected from a McDonald’s restaurant.” Later at trial, the court again refused evidence of the “McDonald’s incident” on the grounds that it was “very remote in terms of its probative weight *** and can [sic] be very prejudicial.”

On February 27, 1989, the trial commenced. At trial, evidence was elicited that the three men and the two unidentified women sat at the back of the bus; that a conversation ensued between Young and the younger woman; that the conversation angered the older woman; and that the older woman told the younger woman, or Young, or both, not to talk.

At trial, Young testified that the older woman loudly threatened to “blow him away” if he did not discontinue the conversation; that the threats continued for a period of time; that subsequently the older woman placed her right arm around the younger woman’s neck; that the older woman was holding a pistol; that after approximately 20 minutes, he (Young) left his seat, walked towards the bus driver, and the older woman followed; that Sheldon Young and the younger woman were arguing; that as Sheldon Young and the younger woman continued to fight, the older woman pointed her gun at Sheldon Young; and that when Young turned his back to warn Sheldon Young, the older woman shot Young in the neck. Young is now a paraplegic with partially paralyzed arms.

During the cross-examination of Young, the CTA attempted to introduce evidence that he was allegedly convicted for solicitation of prostitution in 1979. The trial court, however, ruled that questions regarding the alleged 1979 conviction were not admissible on the grounds that they were highly prejudicial and had minimal probative weight.

During Young’s case in chief, Timothy V. O’Mahoney testified as an expert in transit security. O’Mahoney testified that he had previously worked as a security officer for the CTA; that the Chicago Avenue bus traveled through a “high crime” area; that the training CTA drivers were given regarding security matters was inadequate; that the bus driver should have used the bus’ telephone to call the police when he heard loud talking and lewd language; and that the bus driver should have called the police even if the talking ceased upon his request.

The bus driver testified that he heard obscene and vulgar language from the three men three times; that after each incident of vulgarity, he told the men to quiet down and they did so; that after the third “vulgar” language incident one of the women approached the front of the bus, that Young followed and asked the woman to get off the bus and have sex with him; that the woman asked Young to “please leave us alone”; and that when he heard a “bang,” he curbed the bus, opened the doors and pressed the silent alarm.

After deliberating, the jury awarded Young $3,368,000, which was reduced by 25% for Young’s negligence, leaving a total of $2,526,000. The trial court entered judgment upon the verdict and denied the CTA’s post-trial motion. The CTA appeals both the denial of its motion to dismiss, which was based upon an alleged affirmative defense of immunity, and claimed prejudicial errors. For the reasons set forth below, we affirm the judgment of the trial court.

The CTA argues that the trial court erred in denying its motion to dismiss, which was based upon its alleged immunity pursuant to amended section 27, contending that amended section 27 should be applied retroactively. We disagree. Statutory changes are presumed to be prospective. However, the presumption of prospectivity can be rebutted by: (1) the amendment’s express language; (2) “necessary implication”; (3) demonstrating that the amendment merely affects the remedy; or (4) demonstrating that the amendment merely affects procedural matters. Rivard v. Chicago Fire Fighters Union, Local No. 2 (1988), 122 Ill. 2d 303, 309-10, 522 N.E.2d 1195, cert. denied (1988), 488 U.S. 909, 102 L. Ed. 2d 250, 109 S. Ct. 262.

Initially, the CTA argues that the presumption of prospectivity is rebutted by the amendment’s express language or alternatively by “necessary implication” because the legislation clearly states that the CTA should not be liable for the criminal acts of third parties. We disagree. Amended section 27 expressly states that it was effective September 24, 1985. If the legislature intended the amendment to be retroactive, it could have expressly so stated, or made the amendment effective prior to September 24, 1985. Additionally, we do not find that retroactive application by necessary implication is appropriate. Necessary implication refers to a logical necessity, meaning that no other interpretation is permitted by the words of the statute construed. In re Application of County Treasurer of Cook County for Sale of Certain Real Estate for Delinquent Taxes (1973), 14 Ill. App. 3d 1062, 1066, 304 N.E.2d 9.

Further, the CTA argues that the presumption of prospectivity is rebutted by contending that amended section 27 merely affects Young’s remedy, because Young’s cause of action was not a vested right. In support thereof, the CTA cites Shelton v. City of Chicago (1969), 42 Ill. 2d 468, 248 N.E.2d 121, cert. denied (1969), 396 U.S. 906, 24 L. Ed. 2d 182, 90 S. Ct. 222, wherein the court held that 200 causes of action based upon mob violence statutes were barred, even though they were pending at the time the mob violence statutes were repealed, because “the legislature has the power to withdraw jurisdiction of the courts over statutory causes of action and the exercise of that power leaves all such causes of action *** where the repeal finds them.” (Emphasis added.) (Shelton, 42 Ill. 2d at 473-74.) By analogy, the CTA argues that prior to amended section 27, the right to sue the CTA, a municipal corporation, was a special statutory cause of action created by an express waiver of sovereign immunity. Consequently, the CTA contends that the legislature could repeal its waiver of sovereign immunity without infringing upon any vested rights and that, therefore, the repeal of the statutory cause of action can retroactively bar Young’s cause of action. We are not persuaded by the CIA’s argument because, in contrast to Shelton, Young’s cause of action was not premised upon a special statutory provision that waived sovereign immunity, but rather on the fact that immunity itself had been abolished (except where provided by law) by the Hlinois State Constitution of 1970, article XIII, section 4. Because of the abolition of sovereign immunity, Young’s cause of action was not pursuant to a “special statutory” remedy, but rather based upon a common law remedy.

In response, the CTA cites George v. Chicago Transit Authority (1978), 58 Ill. App. 3d 692, 374 N.E.2d 679, as support for the proposition that “the eradication of sovereign immunity had no effect whatsoever on the CTA” and that, therefore, the right to sue the CTA is a “special statutory” cause of action. In George, the appellant argued that the elimination of tort immunity for governmental entities abolished immunity from punitive damages as well as for compensatory damages. The George court held that the CTA could not be liable for punitive damages in the absence of a statute specifically authorizing such recovery (58 Ill. App. 3d at 693) and, additionally, concluded “that the CTA is protected by common-law principles against punitive damages even without a statute which explicitly provides for such an exemption.” (58 Ill. App. 3d at 695.) However, the George court stated:

“[T]otal immunity from liability for any damages inflicted in the performance of a governmental function is not the issue in this case; by its enabling legislation, the CTA always has been required to respond in compensatory damages for its negligent conduct. (Ill. Rev. Stat. 1975, ch. 111⅔, par. 341.)” 58 Ill. App. 3d at 694.

Based upon the quoted passage, the CTA argues that the right to sue the CTA is a “special statutory” cause of action. Its argument is without merit. After the abolition of sovereign immunity, the right to sue the CTA was no longer predicated upon the original enabling legislation, but rather became a common law right. At the CTA’s inception, the legislature had to codify the right to sue the CTA because the CTA was a municipal corporation (Ill. Rev. Stat. 1987, ch. lllz/3, par. 303) and, as such, would have not been liable for its negligence under the doctrine of sovereign immunity. However, when sovereign immunity was abolished, the legislature no longer had to create or maintain a “special statutory” right to sue the CTA. Upon the abolition of sovereign immunity, except here otherwise provided, the CTA became liable for compensatory damages to the same extent as any other common carrier. Nevertheless, section 41 of the Metropolitan Transit Act (Ill. Rev. Stat. 1987, ch. 111⅔, par. 341), which the George court referred to above, is still in effect because it relates to procedural matters rather than substantive rights. Section 41 provides a statute of limitations and provides how to give the CTA timely notice.

Accordingly, when Young was injured in 1977, the CTA, as a common carrier, was bound to exercise a high degree of care toward its passengers and was responsible for preventing injuries which could have been reasonably foreseen and avoided. In particular, the CTA was liable for an assault or other misconduct by one passenger which injures another where it has reason to anticipate the misconduct but fails to exercise the degree of care and vigilance practicable under the circumstances to prevent the injury. Gordon v. Chicago Transit Authority (1984), 128 Ill. App. 3d 493, 498, 470 N.E.2d 1163; Letsos v. Chicago Transit Authority (1970), 47 Ill. 2d 437, 441, 265 N.E.2d 650.

Additionally, the CTA argues that applying amended section 27 retroactively merely affects Young’s remedy by asserting that amended section 27 does not alter or eliminate all causes of action because the actor who committed the criminal act could be sued. The CTA bases this argument on Bilyk v. Chicago Transit Authority (1988), 125 Ill. 2d 230, 531 N.E.2d 1 (wherein the constitutionality of amended section 27 was challenged), and Ostergren v. Forest Preserve District (1984), 104 Ill. 2d 128, 471 N.E.2d 191 (wherein the constitutionality of a statute that abolished the previously recognized tort liability of landowners for injuries to snowmobilers was challenged). Again, we are not persuaded by the CTA’s argument that amended section 27 should be applied retroactively. While the Bilyk and Ostergren courts’ rationale was sufficient to hold that the respective amendments were constitutional because a remedy was not denied, neither court determined whether an amendment can be applied retroactively to bar an accrued cause of action and whether an amendment that bars an accrued cause of action is characterized as procedural or substantive.

Further, the CTA relies upon Rodriguez-Erdman v. Ravenswood Hospital Medical Center (1987), 163 Ill. App. 3d 464, 516 N.E.2d 731, appeal denied (1987), 118 Ill. 2d 551, 520 N.E.2d 392, as authority for its position that Young’s cause of action can be retroactively barred because the amendment merely affects his remedy. The Rodriguez-Erdman court retroactively applied a statutory provision which barred the appellant’s cause of action that alleged retaliatory discharge, breach of an employment contract, intentional interference with prospective business advantage and intentional infliction of emotional distress. The Rodriguez-Erdman court only considered that constitutionally vested rights are protected from retroactive application of an amendment when it stated that the amendment “does not *** destroy all causes of action or take away a constitutionally protected, vested right.” (Rodriguez-Erdman, 163 Ill. App. 3d at 471.) However, only causes of actions created purely by statutory enactment, not common law rights, may be abrogated by retroactive application of an amendment. (Cruz v. Puerto Rican Society (1987), 154 Ill. App. 3d 72, 76, 506 N.E.2d 667; In re Support of Josic (1979), 78 Ill. App. 3d 347, 350, 397 N.E.2d 204.) Consequently, Young’s cause of action cannot be retroactively barred because, after sovereign immunity was abolished, Young had a common law right to sue the CTA for its negligence.

Next, the CTA argues that the presumption of prospectivity is rebutted because amended section 27 is characterized as a procedural amendment. We disagree. While there is neither a clear line nor a simple formula for determining whether changes in the law are substantive or procedural (Rivard v. Chicago Fire Fighters Union, Local No. 2 (1988), 122 Ill. 2d 303, 310, 522 N.E.2d 1195, cert. denied (1988), 488 U.S. 909, 102 L. Ed. 2d 250, 109 S. Ct. 262), procedural law has been defined as “[t]hat which prescribes the method of enforcing rights or obtaining redress for their invasion; machinery for carrying on a suit.” (People v. Ruiz (1985), 107 Ill. 2d 19, 22, 479 N.E.2d 922.) Examples of amendments that have been characterized as procedural and applied retroactively include changes to statutes of limitation where the party affected has had a reasonable time to bring an action after enactment of the changes (Board of Education of School District No. 170 v. Illinois State Board of Education (1984), 122 Ill. App. 3d 471, 474, 461 N.E.2d 567); and service of process changes (Ogdon v. Gianakos (1953), 415 Ill. 591, 596, 114 N.E.2d 686). The Ogdon court stated that the service of process statute was “ ‘certainly not part of the law which creates, defines, or regulates rights *** [and] is not what makes one a party to a suit.’ ” (Emphasis added.) (Rivard, 122 Ill. 2d at 311, quoting Ogdon, 415 Ill. at 596.) An example of an amendment which was characterized as substantive and applied prospectively involved a statutory amendment that allowed unincorporated associations to be parties to lawsuits. (Rivard, 122 Ill. 2d at 311.) The Rivard court held that the amendment was presumptively prospective because “a rule which ‘makes one a party to a suit’ must be considered substantive, whereas a rule which merely facilitates suit against a party is procedural.” (Rivard, 122 Ill. 2d at 311.) Accordingly, we reject the CTA’s argument that amended section 27 is procedural. Furthermore, we are unpersuaded by the CTA’s reliance on State Farm Mutual Automobile Insurance Co. v. Palmer (1984), 123 Ill. App. 3d 674, 463 N.E.2d 129, wherein interspousal immunity was considered a procedural bar because it could be waived, rather than a substantive bar to actions between spouses. We reject the applicability of Palmer because the statutory immunity granted under amended section 27, in contrast to interspousal immunity, is nonwaivable and prevents a cause of action from coming into being. Therefore, under the Rivard principle, amended section 27 is characterized as substantive because it determines who may be a party to a suit. Rivard, 122 Ill. 2d at 311.

Therefore, we find that the presumption that amended section 27 is prospective has not been overcome, and conclude that the 1985 amendment to section 27 is a substantive change in the law.

Turning to the CTA’s claimed prejudicial errors, the CTA argues that the trial court’s ruling that barred evidence regarding the McDonald’s incident was probative of Young’s conduct on the bus and unduly restricted the CTA from proving that the bus driver was not negligent, that the CTA was not the proximate cause of Young’s injury, and that Young’s conduct was the proximate cause of his injury. We disagree. The trial court acted within the scope of its discretion when it did not allow evidence of the McDonald’s incident because: (1) the record reflects that the two unidentified women involved in the shooting were not involved in the McDonald’s incident; (2) the McDonald’s incident was not admissible as relevant testimony about Young’s character or reputation (Hickey v. Chicago Transit Authority (1964), 52 Ill. App. 2d 132, 139, 201 N.E.2d 742); and (3) the McDonald’s incident was not probative regarding the CTA’s negligence or the extent of Young’s damages. Moreover, the CTA presented the following evidence that Young’s conduct was the proximate cause of his injury: that Young initiated the conversation with one of the unidentified women; that the conversation upset the other unidentified woman; that when one of the unidentified women walked near the bus driver, Young followed her; and that when Young continued talking with the unidentified woman, she shot him in the neck. Accordingly, the CTA was not barred from proving its theory of liability, but was merely limited to presenting evidence regarding Young’s conduct on the bus. The trial court properly excluded evidence of the McDonald’s incident.

The CTA also argues that the trial court erred in not allowing the CTA to cross-examine Young regarding an alleged conviction on November 26, 1979, for solicitation of prostitution, contending that the probative value of evidence relating to Young’s background outweighed any undue prejudice. We disagree. The rule regarding such impeachment was set forth in People v. Montgomery (1971), 47 Ill. 2d 510, 516, 268 N.E.2d 695. The Montgomery court held that a prior conviction may only be admitted if it is punishable by imprisonment of one year or more, or if it involves dishonesty. (Montgomery, 47 Ill. 2d at 516-19.) This rale also applies in civil cases. (Ashby v. Price (1983), 112 Ill. App. 3d 114, 120, 445 N.E.2d 438, citing Knowles v. Panopoulos (1977), 66 Ill. 2d 585, 363 N.E.2d 805.) Therefore, the court did not abuse its discretion in determining that the prejudice outweighed the probative value, because solicitation of prostitution is a Class A misdemeanor, which carries a sentence of less than one year (Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 8—3).

Additionally, the CTA argues that the trial court erred in allowing O’Mahoney’s testimony that the bus Young was injured on travelled through a “high crime” area, contending that the fact that a particular bus route travels through a neighborhood with a crime problem has nothing to do with whether Young’s injury was reasonably foreseeable. This issue was not raised and it has therefore been waived. (107 Ill. 2d R. 366(b)(2)(iii); Raabe v. Maushak (1977), 55 Ill. App. 3d 169, 172, 371 N.E.2d 96.) We are not persuaded by the CTA’s contention that the issue was preserved for appeal by Young’s reply to the CTA’s post-trial motion, which discussed the propriety of O’Ma-honey’s testimony, because Young’s pleading was unresponsive and extraneous to the issues raised in the CTA’s post-trial motion.

We also reject the CTA’s argument that the trial court erred in refusing to submit the following special interrogatories to the jury: “the sole proximate cause of the injuries was the assault committed by Young on an unidentified passenger”; and “the proximate cause of the injuries was the assault committed by Young concurring with the assault committed by the unidentified passenger.” Giving special interrogatories to the jury is within the trial court’s discretion. (Henderson v. Illinois Central Gulf R.R. Co. (1983), 114 Ill. App. 3d 754, 760, 449 N.E.2d 942.) We find that the trial court acted within its discretion by refusing the CTA’s special interrogatories regarding proximate cause because the repeated reference that Young committed an assault was argumentative and could confuse or mislead the jury. Shaheed v. Chicago Transit Authority (1985), 137 Ill. App. 3d 352, 362, 484 N.E.2d 542.

Finally, the CTA argues that the court erred in refusing to instruct the jury regarding whether the unidentified woman was justified in the use of force in response to an alleged assault committed by Young. We disagree. The trial court acted within the scope of its discretion in determining that such an instruction was not warranted because there was insufficient evidence to support the CTA’s theory. Specifically, there was not any evidence that Young physically assaulted either of the unidentified women and neither of the unidentified women testified to any physical threats that Young allegedly committed.

In conclusion, the CTA was not prejudiced by any of the claimed errors whether they are considered alone or in combination.

For the reasons set forth above, the judgment of the circuit court of Cook County is affirmed.

Judgment affirmed.

BUCKLEY, P.J., and CAMPBELL, J., concur.

      Illinois State Constitution of 1970, article XIII, section 4, which became effective on January 1, 1972, states that “[ejxcept as the General Assembly may provide by law, sovereign immunity in this State is abolished.”

      Section 41 provides: “No civil action shall be commenced in any court against the Authority by any person for any injury to his person unless it is commenced within one year from the date that the injury was received or the cause of action accrued. Within six (6) months from the date that such an injury was received or the cause of action accrued, any person who is about to commence any civil action in any court against the Authority for damages on account of any injury to his person shall file in the office of the secretary of the Board and also in the office of the General Attorney for the Authority either by himself, his agent, or attorney, giving the name of the person to whom the cause of action has occurred, the name and residence of the person injured, the date and about the hour of the accident, the place or location where the accident occurred and the name and address of the attending physician, if any. If the notice provided for by this section is not filed as provided, any such civil action commenced against the Authority shall be dismissed and the person to whom any such cause of action accrued for any personal injury shall be forever barred from further suing.” Ill. Rev. Stat. 1987, ch. lll2/3, par. 341.