author: DORRIAN, J.

text:
    Champa FERNANDO, Plaintiff-Appellee, v. Shanaka J. FERNANDO, Defendant-Appellant.
    No. 16AP-788
    Court of Appeals of Ohio, Tenth District, Franklin County.
    Rendered on December 29, 2017
    On brief: Petroff Law Offices, LLC, Ronald R. Petroff, and Michelle J. Askins, Columbus, for appellee.
    On brief: Atkins and Atkins Attorneys at Law, Columbus, Jacqueline Baumann, and Arianna Atkins, for appellant.
    DECISION
   DORRIAN, J.

{¶ 1} Defendant-appellant, Shanaka J. Fernando, appeals the October 19, 2016 judgment entry and final decree of divorce entered by the Franklin County Court of Common Pleas, Division of Domestic Relations. For the following reasons, we affirm in part and reverse in part.

I. Facts and Procedural History

{¶ 2} Appellant and plaintiff-appellee, Champa Fernando, were married on January 6, 1996, and three children were born as issue of the marriage. On February 10, 2015, appellee filed a complaint for divorce. On January 22, 2016, the parties submitted an agreed entry settling their personal property issues. On March 4, 2016, the parties submitted and the trial court accepted a document containing agreed joint stipulations and a divorce settlement memorandum. As relevant to the present appeal, the parties stipulated that, in addition to the marital residence located in Dublin, Ohio, they were joint owners of five properties located in Sri Lanka: one located in Seeduwa ("the Seeduwa property"), three located in Bollatha ("the Bollatha properties"), and one located in Colombo ("the Colombo property"). The parties stipulated appellee would retain the marital residence and appellant would be entitled to a share of the equity of the marital residence, as determined by the court. The parties also entered stipulations regarding their automobiles, spousal support, life insurance, retirement accounts, financial accounts, and custody of their children.

{¶ 3} A hearing was conducted in early March 2016, with the final day of the hearing occurring on March 15, 2016. Following the hearing, on October 19, 2016, the trial court entered a judgment granting a final decree of divorce. With respect to the Sri Lankan properties, the divorce decree provided appellant would retain the Seeduwa property and the Bollatha properties. The decree further provided that the land portion of the Colombo property was appellee's separate property, and appellee would retain it. The court held the building located on the Colombo property was marital property, and each of the parties was entitled to one-half of the equity in that structure. The trial court also held appellee was entitled to half of the profits from the sale of another Sri Lankan property ("the Ja-Ela property") the parties previously owned, which appellant sold in 2013. The decree further provided for division of the parties' automobiles and other assets and accounts, and for custody of the children.

II. Assignments of Error

{¶ 4} Appellant appeals and assigns the following six assignments of error for our review:

[I.] The lower court in its Judgment Entry Decree of Divorce erred and abused its discretion by determining the parties' de facto termination of marriage date was after the date of the final hearing.
[II.] The lower court in its Judgment Entry Decree of Divorce erred and abused its discretion by failing to make an equitable division of martial property when it excluded the value of the cars in the property division.
[III.] The lower court in its Judgment Entry Decree of Divorce erred and abused its discretion by failing to make an equitable division of martial property when the court chose an arbitrary amount in determining the value of the Colombo property.
[IV.] The lower court in its Judgment Entry Decree of Divorce erred and abused its discretion in determining the amount of rental income received by Appellee for purposes of property division.
[V.] The lower court in its Judgment Entry Decree of Divorce erred and abused its discretion in including the proceeds of the Ja-Ela property in the division of property which resulted in an inequitable division of property.
[VI.] The lower court in its Judgment Entry Decree of Divorce erred and abused its discretion in determining that the land located on the Colombo property was Appellee's separate property.

III. Discussion

A. Duration of the Marriage for Property Valuation

{¶ 5} In his first assignment of error, appellant asserts the trial court abused its discretion by holding that the parties' marriage terminated as of the date of the final judgment entry rather than the date of the final hearing. Appellant argues the trial court effectively found a de facto termination date that was contrary to the statutory presumption for when a marriage terminates for purposes of property valuation and the facts in this case.

{¶ 6} "Because the value of an asset may change over time, the court must select a date as of which to value marital assets." Rossi v. Rossi , 8th Dist. No. 100133, 2014-Ohio-1832, 2014 WL 1775891, ¶ 29. See also Heyman v. Heyman , 10th Dist. No. 05AP-475, 2006-Ohio-1345, 2006 WL 727800, ¶ 31 ("The first step in making an equitable distribution of marital property is to determine the duration of the marriage."). R.C. 3105.171(A)(2)(a) creates a presumption that the term of a marriage for purposes of property valuation is the time from the date of the marriage through the date of the final hearing in an action for divorce. Meeks v. Meeks , 10th Dist. No. 05AP-315, 2006-Ohio-642, 2006 WL 328685, ¶ 50. If the court determines use of that date would be inequitable, however, it may select a termination date that it considers equitable. R.C. 3105.171(A)(2)(b). "[A] trial court may use a de facto termination of marriage date when the evidence clearly and bilaterally shows that it is appropriate based upon the totality of the circumstances." Meeks at ¶ 50. The court has discretion whether to use the final hearing date or a de facto termination date and this decision is subject to review for abuse of discretion. Id.

{¶ 7} An abuse of discretion occurs when a trial court's decision is "unreasonable, arbitrary, or unconscionable." Blakemore v. Blakemore , 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). "A decision is unreasonable if there is no sound reasoning process that would support the decision." AAAA Ents., Inc. v. River Place Community Urban Redevelopment Corp. , 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990). An arbitrary decision is one that lacks adequate determining principle and is not governed by any fixed rules or standard. Porter, Wright, Morris & Arthur, LLP v. Frutta Del Mondo, Ltd. , 10th Dist. No. 08AP-69, 2008-Ohio-3567, 2008 WL 2779511, ¶ 11. An unconscionable decision may be defined as one that affronts the sense of justice, decency, or reasonableness. Id.

{¶ 8} The final hearing in this case occurred on March 15, 2016. The trial court entered its final judgment granting the divorce on October 19, 2016. In the divorce decree, the court found the duration of the marriage was from January 6, 1996 until the date of filing of the divorce decree-i.e., October 19, 2016. The trial court did not declare any alternative termination date or duration of the marriage for purposes of property valuation. Thus, in effect, the court held that the duration of the marriage for purposes of property valuation and distribution was from January 6, 1996 until October 19, 2016. See Pierron v. Pierron , 4th Dist. No. 07CA3153, 2008-Ohio-1286, 2008 WL 746948, ¶ 1 ("Where a decree is silent about the date of distribution, the date the marriage terminates controls that issue.").

{¶ 9} The majority of the property valuation and distribution issues presented in this case were not impacted by the trial court's determination of the marriage termination date. As discussed below, the trial court made its valuation and division of real property based on appraisals and evidence presented at trial. The parties stipulated to the values of their automobiles and the court found the parties had no joint financial accounts. The divorce decree provided each party would retain his or her respective life insurance policy, thus there was no need to determine a date for dividing the value of those policies. Similarly, the court found neither party owned any stocks, bonds, or mutual funds, so there was no need to determine an appropriate valuation date for distribution of those assets. However, the court found the parties' retirement accounts were marital property and ordered them to be equally divided. The trial court did not provide a specific date for valuation of those retirement accounts; therefore, the order effectively provided that they were to be divided equally based on the value as of the date of the final judgment entry. See Pierron at ¶ 1. Accordingly, we must consider whether the trial court abused its discretion by effectively holding that the termination date of the marriage for purposes of property valuation was the date of the final judgment entry, rather than the date of the final hearing.

{¶ 10} As explained above, there is a statutory presumption that, for the purposes of property valuation, a marriage terminates as of the date of the final hearing, but a trial court may find a de facto termination date if using the date of the final hearing would be inequitable. Generally, a trial court may find a de facto termination date of a marriage at some point prior to the final hearing on the divorce petition, based on the facts and circumstances in the case. See Meeks at ¶ 50 ("Although there may be a de facto termination of the marriage prior to the date of the final divorce hearing, such termination must be clear and bilateral, not unilateral. Generally, trial courts use a de facto termination of marriage date when the parties separate, make no attempt at reconciliation, and continually maintain separate residences, separate business activities, and separate bank accounts."); Mantle v. Sterry , 10th Dist. No. 02AP-286, 2003-Ohio-6058, 2003 WL 22681343, ¶ 13 ("The applicable case law [regarding determination of a de facto termination date] simply requires the trial court to consider all facts relevant to the issue of whether the parties' marriage was irretrievably broken at some point in time prior to the final hearing date."). Factors to be considered in determining whether to declare a de facto termination date include "whether the parties made a clear and bilateral decision to separate, whether the marriage was irretrievably broken at the time of separation, whether the separation was friendly, whether the parties engaged in sexual relations after the date of separation, whether either party had begun to cohabitate with another following separation, and whether the parties maintained separate financial arrangements." Heyman at ¶ 33. The parties' agreed joint stipulations provided, in relevant part, that they were incompatible and had lived separate and apart for over one year without interruption and without cohabitation as of that date. These stipulations suggest the parties had made a clear and bilateral decision to separate and that the marriage was irretrievably broken at the time of the hearing in March 2016, if not earlier. The trial court's decision did not contain any discussion or analysis of the de facto termination date factors.

{¶ 11} Additionally, as appellant notes on appeal, use of the date of the judgment entry as the marriage termination date for property valuation may create problems in equitably dividing marital property because the evidence presented at a hearing relates to the value of the property as of that time, not as of the eventual date of a final judgment entry. See Rossi at ¶ 30 (holding trial court did not abuse its discretion by failing to apply the date of final judgment entry as the termination date of the marriage and stating that "use of the date of final judgment as the marriage termination date in valuing and distributing marital property would be virtually unworkable").

{¶ 12} The trial court failed to specify a marriage termination date for purposes of property valuation, thereby effectively holding that the marriage terminated for purposes of property valuation as of the date of the final judgment entry. The trial court did not address the statutory presumption contained in R.C. 3105.171(A)(2)(a) or any equitable factors that might make an alternative date appropriate. Thus, the decision failed to set forth any reasoning process or determining principle to support the court's rejection of the statutory presumption and effective use of an alternate marriage termination date for purposes of property valuation.

{¶ 13} Accordingly, we sustain appellant's first assignment of error.

B. Issues Related to the Colombo Property

{¶ 14} Next, we turn to appellant's third, fourth, and sixth assignments of error, which relate to the Colombo property.

{¶ 15} In his sixth assignment of error, appellant argues the trial court erred by concluding that the land portion of the Colombo property was appellee's separate property.

{¶ 16} The Colombo property consisted of a plot of land, given by appellee's father in 2001 ("the Colombo land") and a multi-story, multi-unit building that was completed in 2010 ("the Colombo building"). Both appellant and appellee testified the Colombo building was constructed using marital funds. The trial court concluded the Colombo building was marital property, and neither party disputes that finding on appeal. The trial court further concluded the Colombo land was appellee's separate property. Appellant argues the trial court erred in reaching this conclusion.

{¶ 17} In divorce proceedings, the court is required to determine what constitutes marital property and what constitutes separate property. R.C. 3105.171(B). Marital property does not include separate property. R.C. 3105.171(A)(3)(b). Separate property is defined by statute, in relevant part, as "[a]ny gift of any real or personal property or of an interest in real or personal property that is made after the date of the marriage and that is proven by clear and convincing evidence to have been given to only one spouse." R.C. 3105.171(A)(6)(a)(vii). The statute further provides that the commingling of separate property with any other type of property does not destroy its identity, unless the separate property is not traceable. R.C. 3105.171(A)(6)(b). When the parties contest whether an asset is marital or separate property, it is presumed to be marital property unless proven otherwise. Wolf-Sabatino v. Sabatino , 10th Dist. No. 10AP-1161, 2011-Ohio-6819, 2011 WL 6930524, ¶ 11. The party requesting that an asset be classified as separate property bears the burden of tracing it to his or her separate property. Id. We review a trial court's determination of property as marital or separate under a manifest weight standard, and will affirm a trial court's determination if it is supported by some competent, credible evidence. Roush v. Roush , 10th Dist., 2017-Ohio-840, 85 N.E.3d 1268, ¶ 18, citing Banchefsky v. Banchefsky , 10th Dist. No. 09AP-1011, 2010-Ohio-4267, 2010 WL 3527578, ¶ 36.

{¶ 18} Appellant testified at trial that he initially did not have a good relationship with appellee's parents, but by the time of the marriage and thereafter he was on good terms with them. He stated the Colombo land was given as a gift by appellee's father to benefit the family-i.e., appellee, appellant, and their children. Appellant testified it was his intention the couple would occupy part of the Colombo building after retiring. On appeal, appellant claims the Colombo land was intended to be a wedding gift to the couple, but that delivery of the gift was delayed until five years after the marriage because there were squatters living on the land.

{¶ 19} Appellee testified the Colombo land was a gift from her father, received in December 2001, given solely to her. She stated that her father subdivided a plot of land and gave a portion to each of his daughters. Appellee testified that, although she and appellant had been married five years and had their first child at the time of the gift, it was intended solely to benefit her. Appellee stated she did not intend to reside on the Colombo land in retirement, and that the Colombo building was constructed to be leased to others for profit. Appellee testified the Colombo land was titled in her name alone. Appellee introduced a copy of the deed of gift from her father naming her as the recipient of the gift and an affidavit from her father, made in 2011, attesting the Colombo land was a gift to appellee and not to appellant. On cross-examination, appellee admitted the affidavit from her father was prepared around the time of a prior divorce filing, which she subsequently withdrew.

{¶ 20} Appellant argues the trial court erred by concluding the Colombo land was appellee's separate property. Appellant claims the use of marital funds to maintain the property, build the Colombo building, and pay property taxes on the Colombo land demonstrate the Colombo land was marital property. Appellant claims the fact that the Colombo land is titled in appellee's name alone is not conclusive as to whether it is marital or separate property. Appellant argues the affidavit from appellee's father should be given little weight because it was prepared in anticipation of a divorce proceeding. Appellant further argues appellee was not a credible witness because she failed to provide certain information on her financial disclosures and tax returns.

{¶ 21} Appellant also cites the decision of the Eleventh District Court of Appeals in Stacy v. Stacy , 11th Dist. No. 2004-A-0076, 2005-Ohio-5289, 2005 WL 2416666, in support of his claim that the Colombo land was marital property. In Stacy , Ronald Stacy claimed the trial court erred by concluding that a vacant parcel of land given by his mother was marital property. Id. at ¶ 14. The lot was transferred by a quitclaim deed from Ronald's mother to Ronald and his then-wife Sherri. Ronald testified it was his idea to put his wife's name on the deed. Following the transfer, the property taxes on the lot were paid from marital funds. Ronald's mother testified it was her intention that the gift was solely for Ronald and that the lot was to be returned to her if the couple wanted to sell it. Id. at ¶ 17. The trial court concluded the lot was marital property, noting that the deed was prepared by legal counsel and that if Ronald's mother had intended it to be a gift solely to him, that could have been reflected by making the deed to Ronald alone. The court also noted the alleged restriction on sale of the property could have been included in the deed, but was not. The trial court concluded that testimony from Ronald and his mother was a self-serving attempt to retain a valuable asset. Id. at ¶ 19. Noting there was conflicting testimony regarding whether the gift was intended for Ronald or for the couple, the court of appeals affirmed the trial court's ruling, finding that Ronald failed to establish by clear and convincing evidence the gift was intended solely for him. Id. at ¶ 20. Appellant argues the present case is analogous to Stacy because the property taxes on the Colombo property were paid with marital funds. Despite this similarity, there is a substantial difference in the present case, in that the deed of gift conveying the Colombo land was made solely to appellee. Thus, we are not persuaded the reasoning of the Stacy decision applies in the present case.

{¶ 22} The fact that appellee holds title to the Colombo land is not conclusive as to its identity as marital or separate property. R.C. 3105.171(H). See also Wolf-Sabatino at ¶ 66. Although the trial court referred to that fact as strengthening appellee's claim of separate property, it did not rely solely on appellee's individual ownership of the property in reaching its conclusion. The court also found the deed, the trial testimony, and the affidavit from appellee's father clearly established his intent to give the Colombo land solely to appellee. To the extent appellant challenges the credibility of appellee's testimony or the affidavit from appellee's father, those issues were raised at trial and the court was able to consider them in evaluating and weighing the evidence. "It is the place of the trial court, not the reviewing court, to assess the credibility of the witnesses." Heyman at ¶ 18. Under the circumstances in this case, we conclude there was competent, credible evidence to support the trial court's conclusion and, therefore, the finding that the Colombo land was appellee's separate property was not against the manifest weight of the evidence. Compare Crowder v. Crowder , 10th Dist. No. 98AP-1124, 1999 WL 569277 (Aug. 5, 1999) (holding that even if lump sum mortgage payment and monthly mortgage payments on the marital residence made by appellant's father were considered gifts, there was no evidence they were given only to the appellant); Pettry v. Pettry , 81 Ohio App.3d 30, 34-35, 610 N.E.2d 443 (10th Dist.1991) (holding that despite appellant's testimony that a down payment on the marital home was advanced by her parents, she failed to demonstrate the down payment was intended to be a separate gift to her, rather than a gift to the couple).

{¶ 23} Accordingly, we overrule appellant's sixth assignment of error.

{¶ 24} In his third assignment of error, appellant argues the trial court abused its discretion in determining the value of the Colombo property. As explained above, we conclude the trial court's determination that the Colombo land was appellee's separate property was not against the manifest weight of the evidence. Therefore, in considering appellant's third assignment of error, we will evaluate whether the trial court abused its discretion in determining the value of the Colombo building, which it found to be marital property.

{¶ 25} After determining what constitutes marital property and what constitutes separate property, the court is required to divide the marital and separate property equitably. R.C. 3105.171(B). With respect to marital property, R.C. 3105.171(C)(1) provides that marital property shall be divided equally, unless an equal division would be inequitable, in which case the property shall be divided in the manner the court determines equitable. The trial court must value the marital property to determine an appropriate division. See Raymond v. Raymond , 10th Dist. No. 11AP-363, 2011-Ohio-6173, 2011 WL 5999039, ¶ 22 ("To comply with its duty [under R.C. 3105.171(C)(1) ], the trial court must value and divide all marital property in a divorce, and in most cases, the failure to do so amounts to an abuse of discretion. Although a trial court possesses broad discretion to determine the value of marital property, it may not omit valuation altogether.") (Citations omitted.). We review a trial court's determination of the value of marital property for abuse of discretion. Beagle v. Beagle , 10th Dist. No. 09AP-353, 2009-Ohio-6570, 2009 WL 4809837, ¶ 11 ("A trial court has broad discretion to determine the value of marital property, and its determination will not be disturbed on appeal absent an abuse of that discretion."); Grody v. Grody , 10th Dist. No. 07AP-690, 2008-Ohio-4682, 2008 WL 4233914, ¶ 20 ("A trial court has broad discretion in developing a measure of value for property in a divorce case.").

{¶ 26} "Although a trial court enjoys broad discretion in determining the value of a marital asset, such discretion is not without limit. An appellate court's duty is not to require the adoption of any particular method of valuation, but to determine whether, based upon all the relevant facts and circumstances, the court abused its discretion in arriving at a value." Apps v. Apps , 10th Dist. No. 02AP-1072, 2003-Ohio-7154, 2003 WL 23024253, ¶ 38. "A trial court must have a rational evidentiary basis for assigning value to marital property." Id. See also Dach v. Homewood , 10th Dist. No. 14AP-502, 2015-Ohio-4191, 2015 WL 5882937, ¶ 36 ("[A] domestic court has broad discretion to make divisions of property and if there is some competent, credible evidence to support the trial court's decision, there is no abuse of discretion.").

{¶ 27} At trial, three sets of appraisals of the Sri Lankan properties, including the Colombo property, were admitted as evidence. Appellant submitted appraisals conducted in 2011 and a second set of appraisals conducted in 2015. Appellee submitted appraisals conducted on March 10, 2016. Although the parties had stipulated to the admission of appraisal reports on the Sri Lankan properties, appellant objected to appellee's March 10, 2016 appraisals because they were conducted after the stipulations had been entered. The trial court overruled appellant's objection, but noted it would give the 2016 appraisals appropriate weight because the appraiser who prepared the reports was unable to testify in the proceedings.

{¶ 28} In the divorce decree, the trial court generally found "the appraisal done and introduced by Defendant to be the most accurate appraisals." (Jgmt. Entry at 5.) All the appraisals of the Sri Lankan properties stated property values in Sri Lankan rupees. The parties stipulated to a conversion rate of 134.44 Sri Lankan rupees to one United States dollar. Based on that conversion rate, the trial court's determination of the values of the four Sri Lankan properties awarded to appellant under the property settlement matched the values contained in the 2015 appraisals submitted by appellant, rounded to the closest whole dollar. With respect to the Colombo building, however, the trial court's determination of value matched the value contained in the 2011 appraisal of the Colombo property submitted by appellant. The 2011 appraisal stated the Colombo building was worth 19,687,000 rupees, which would be $146,437.07 at the stipulated conversion rate. The 2015 appraisal stated the Colombo building was worth 21,000,000 rupees, which would be $156,203.51 at the stipulated conversion rate. In the divorce decree, the trial court concluded the Colombo building was worth $146,437.07, and that appellant was entitled to one-half of that value. The trial court also appears to have relied on the 2011 appraisal in determining the value of the Colombo land and the total value of the Colombo property.

{¶ 29} As noted above, a trial court must have a rational evidentiary basis for assigning value to marital property. Apps at ¶ 38. The trial court's discussion of the Colombo property does not contain any indication why the court found the 2011 appraisal of that property more persuasive than the 2015 appraisal, despite relying on the 2015 appraisals in determining the value of all the other Sri Lankan properties. The trial court relied on the 2011 appraisal without explanation or justification to set the value of the Colombo building for purposes of division of the marital property. On remand, the trial court may provide a rational evidentiary basis for relying on the 2011 appraisal or consider the 2015 appraisal if it determines the same to be a rational evidentiary basis for the value of the Colombo property.

{¶ 30} Accordingly, we sustain appellant's third assignment of error.

{¶ 31} In his fourth assignment of error, appellant asserts the trial court abused its discretion in determining the rental income appellee received from the Colombo building and in distributing that income between the parties. We review a trial court's division of property for abuse of discretion. Roush at ¶ 18.

{¶ 32} Both appellant and appellee testified at trial that the Colombo building was completed in 2010. Appellee testified the Colombo building had been consistently rented to a single family since 2010, and that she received approximately $10,000 per year in rental income from the Colombo building. Appellant testified he had not received any of the rental income from the Colombo building and he was seeking half of the approximately $60,000 appellee had received in rental income from the Colombo building during 2010 through 2016. Further, in an affidavit filed in opposition to appellant's request for attorney fees related to discovery, appellee attested she received $10,500 in rental income from the Colombo building in 2015.

{¶ 33} In the divorce decree, the trial court found appellee had received $28,333.33 in rental income from the Colombo building from August 2010 through March 2016. The court further found no evidence had been given as to improvements or receipts for expenses. The court concluded appellant was entitled to one-half of the rental proceeds, or $14,166.67. The decision does not set forth the basis for the trial court's finding that appellee received rental income from the Colombo building that was less than half of the amount she testified to at trial. There does not appear to be any competent, credible evidence in the record to support the trial court's determination of appellee's rental income from the Colombo building.

{¶ 34} Accordingly, we sustain appellant's fourth assignment of error

C. Exclusion of Value of Automobiles from Property Division

{¶ 35} In his second assignment of error, appellant asserts the trial court abused its discretion by failing to include the value of two of the parties' automobiles in the property settlement. R.C. 3105.171(C)(1) provides that marital property shall be divided equally, unless an equal division would be inequitable, in which case the property shall be divided in the manner the court determines equitable. We review a trial court's division of marital property for abuse of discretion. Lorey v. Lorey , 10th Dist. No. 16AP-14, 2016-Ohio-5949, 2016 WL 5375469, ¶ 14.

{¶ 36} In the divorce decree, the trial court held that appellee would retain, free and clear from any claim of appellant, a 2012 Honda Odyssey that was titled jointly in the parties' names. The trial court also held that appellant would retain, free and clear from any claim of appellee, a 2011 Honda Civic and a 2012 Honda Civic, one of which was titled jointly in the parties' names and one of which was titled in appellant's name. The trial court further expressly held that appellant would not be entitled to any equity in the 2012 Honda Odyssey. Although the trial court did not expressly hold that appellee was not entitled to any equity in the two vehicles retained by appellant, it effectively reached this result by not providing for any transfer or offset of equity in the vehicles in the property settlement portion of the divorce decree.

{¶ 37} Appellant argues the trial court abused its discretion because its decision was inconsistent with the parties' agreed joint stipulations and settlement memorandum. Under the joint stipulations, the parties agreed appellant would be entitled to retain all equity in the 2012 Honda Civic. The joint stipulations did not include any express provisions with respect to any equity in the 2012 Honda Odyssey or the 2011 Honda Civic, although it contained stipulations regarding the value of those vehicles. Appellant argues on appeal that "[t]he intent of the parties seems clear that by mentioning the values of the other two vehicles in the Settlement Memorandum but not the 2012 Honda Civic the parties intended for the lower court to distribute their values in the division of property." (Appellant's Brief at 22-23.) However, if this was the intent of the parties, they could have made it clear by stating in the settlement memorandum that each party would receive one-half the equity in those two vehicles. Under these circumstances, where the parties did not expressly provide in the agreed joint stipulations whether the equity in the 2012 Honda Odyssey and 2011 Honda Civic was to be divided among the parties, we cannot conclude the trial court abused its discretion by effectively permitting each party to retain the equity in the vehicles they were awarded under the divorce decree.

{¶ 38} Accordingly, we overrule appellant's second assignment of error.

D. Proceeds of Sale of Ja-Ela Property

{¶ 39} In his fifth assignment of error, appellant claims the trial court abused its discretion by holding appellee was entitled to one-half of the proceeds of the Ja-Ela property sale. Appellant argues the trial court failed to consider the totality of the circumstances surrounding the proceeds of this sale and each party's use of marital funds to start individual businesses around the time of the sale.

{¶ 40} The trial court concluded appellant sold the Ja-Ela property in 2013 for a profit of $34,960, and that appellee never received her half of the profits. The trial court included a payment of $17,480 to appellee in the property settlement to account for one-half of the profits from the Ja-Ela property sale.

{¶ 41} Appellant asserts he used the profits from the Ja-Ela property sale to start a chicken farming business, which ultimately failed, resulting in a financial loss. Appellant claims that around the same time, appellee used marital funds to start a business, which also ultimately resulted in a loss of funds. Appellant argues the trial court's award was inequitable because it failed to consider appellee's loss of marital funds through her business venture, which effectively offset appellant's use of the Ja-Ela profits for his business.

{¶ 42} Appellee testified at trial that the Ja-Ela property had been purchased in 2003, using funds from a home equity line on the marital residence. Appellee stated appellant sold the Ja-Ela property in 2013 and informed her he was using the money to start a business in Sri Lanka. Appellee testified that none of the proceeds were used to pay marital expenses. She requested the court award her one-half of the proceeds from the Ja-Ela sale. On cross-examination, appellee admitted she opened a business around the same time, using funds from her paychecks. Appellant testified that he used the proceeds from the sale of the Ja-Ela property to start a chicken farming business. He claimed appellee was generally aware he was starting a business, although she was not aware of specific details. Appellant stated the business failed due to a flood, resulting in a financial loss. Appellant argued appellee was not entitled to any of the proceeds from the Ja-Ela sale, which he used to fund his individual business, because appellee had incurred similar losses from her business venture using marital funds.

{¶ 43} It is undisputed that the Ja-Ela property was marital property and that appellant unilaterally sold the property and used the proceeds to fund a business venture. While the divorce decree did not expressly address appellant's claim that appellee was not entitled to one-half the proceeds from the sale due to her use of marital funds for other business ventures, the transcript demonstrates the trial court was aware of this argument and could consider it in determining an equitable property settlement. Under these circumstances, we conclude appellant has failed to demonstrate the trial court acted arbitrarily, unreasonably, or unconscionably in awarding appellee one-half of the proceeds of the Ja-Ela property sale. Thus, the trial court did not abuse its discretion in making this award.

{¶ 44} Accordingly, we overrule appellant's fifth assignment of error.

IV. Conclusion

{¶ 45} For the foregoing reasons, we sustain appellant's first, third, and fourth assignments of error, and overrule appellant's second, fifth, and sixth assignments of error. We affirm in part and reverse in part the judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations, and remand the matter to that court for further proceedings consistent with law and this decision.

Judgment affirmed in part and reversed in part; cause remanded.

BRUNNER and HORTON, JJ., concur.

      In her brief on appeal, appellee requests the court sustain the third assignment of error. She appears to argue the trial court should have relied on the 2015 appraisal in determining the value of the Colombo land, but further argues the Colombo building was only worth 14,000,000 rupees, or $104,135.67 at the stipulated conversion rate. It is unclear where appellee derived this proposed value, because it does not appear to be contained in any of the three appraisals of the Colombo property submitted to the trial court. Regardless, to the extent appellee seeks to challenge the trial court's determination of the value of the Colombo property, she did not file a notice of appeal from the judgment and any such challenge is not properly before this court.


source: Caselaw Access Project

license: Public Domain

text:
    The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Charles Adrian SCOTT, Defendant-Appellant.
    No. 2-15-1056
    Appellate Court of Illinois, Second District.
    Opinion filed February 23, 2018
    Michael J. Pelletier, Thomas A. Lilien, and Jack Hildebrand, of State Appellate Defender's Office, of Elgin, for appellant.
    Joseph P. Bruscato, State's Attorney, of Rockford (Patrick Delfino, Lawrence M. Bauer, and Adam Trejo, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.
   JUSTICE JORGENSEN delivered the judgment of the court, with opinion.

¶ 1 Defendant, Charles Adrian Scott, appeals from his conviction of a single count of possession with intent to deliver at least 100, but less than 400, grams of a substance containing cocaine ( 720 ILCS 570/401(a)(2)(B) (West 2014) ). He contends that the State's evidence was insufficient to sustain the conviction in that it failed to show that he knew that a parcel that he accepted contained cocaine. We hold that the State's evidence was sufficient, especially considering the implausibility of defendant's testimony, which we hold we may consider when we evaluate the sufficiency of the evidence as a whole. We therefore affirm.

¶ 2 I. BACKGROUND

¶ 3 Defendant had a jury trial on the one count of which he was later convicted. The State's evidence showed that, on March 31, 2015, Alexander Lupiani, a postal inspector at O'Hare Airport, noticed that a parcel addressed to "Jameka Simms" at 1104 Cedar Street in Rockford, from "Tamika Simms" in Tempe, Arizona, had what he deemed to be "excessive tape," a characteristic that he associated with the mailing of narcotics. He further noted that the return address included a nonexistent house number and that Arizona was "one of several states that is a source for narcotics." Lupiani arranged for a narcotics dog from the customs service to sniff the parcel. The dog alerted to the parcel, so Lupiani obtained a warrant to open it. Inspectors found that it contained a total of about 2300 grams of a "white powdery substance" formed into two bricks. These bricks were under a bag of toys that was contained in a separate box inside the parcel.

¶ 4 The postal inspectors decided to remove all but about 150 grams of the substance and make a "controlled delivery" of the parcel. They replaced the missing powder with baby wipes, fitted the parcel with a GPS unit and a beacon to broadcast an alarm when the parcel was opened, brushed on a fine powder that is visible under ultraviolet light, and resealed the parcel. On April 1, 2015, the postal inspectors, in cooperation with the Rockford police, established surveillance positions around 1104 Cedar Street, which was a two-story single-family house. William Scott (William), a postal inspector, dressed as a mail carrier to make the delivery and carried a cell phone set up to act as a one-way radio link. The State introduced into evidence a recording of the transmission over that link. William arrived at the door somewhat before noon. Defendant answered the door. William asked defendant if he knew a Tamika Simms. Defendant said that he was unfamiliar with that name. William offered to leave a postal delivery slip for defendant to leave for the parcel's proper recipient. After noting that his girlfriend was at work, defendant agreed to sign for and accept the parcel. On the recording, defendant seems to say that the parcel might have something to do with his "old lady." William told him that, if the parcel "was not for anybody at the address[, he should] just return [it] to the post office." Defendant signed for the delivery as "Charles Scott," using his real name. After making the delivery, William used the cell phone link to give the other officers a detailed description of defendant.

¶ 5 According to Mark Jimenez, a detective with the Rockford police who assisted the postal inspectors, William delivered the parcel at 11:42 a.m. At 11:45 a.m., defendant and another male (his nephew, Antonio Williams) exited the house through the back. Jimenez recognized defendant as the person whom William had described. Defendant stayed on the back deck briefly while talking on the phone. He and Williams then got into a red pickup truck. They stayed in the stationary truck from 11:45 a.m. to "probably" 12:08 p.m. and then drove away in it, returning two minutes later. Jimenez testified that he was close enough to the truck to hear its engine, but he did not hear the engine being cranked until just before it was driven away. Jimenez saw defendant and Williams leave a second time and return after about 10 minutes. Just before a postal inspector announced that the beacon in the parcel had been triggered, Jimenez saw Williams leave the house alone and walk north on the sidewalk. Jimenez arrested Williams "further down the block on Cedar Street to the west" while most of the other officers were raiding the house.

¶ 6 According to other testimony, the beacon went into alarm mode at about 1:15 p.m. Defendant was then inside; Williams was in the backyard. The officers surrounded the house, with one group going to the front door. At about 1:18 p.m., they announced themselves as police and demanded entry. About 20 seconds later, just as the officers were about to open the door by force, defendant opened the door to them.

¶ 7 The officers searched the house and found no one but defendant inside. They found the parcel upstairs on a bed with both the outer and inner boxes opened. A few items in the bag of toys were displaced, but the package that held the baby wipes and the remaining cocaine was not exposed. The officers found a loaded handgun at the side of the bed in another bedroom and additional ammunition in the closet. They found another handgun concealed in the living room couch. (Both guns had been purchased by defendant's girlfriend, Betsy Caviness, who had a valid FOID card, but the officers did not learn that until later.) Clothing that the officers found in the bedrooms suggested occupancy by multiple people, both male and female. Some of the clothing was defendant's. When the officers searched the kitchen, they found a digital cooking scale in its box, latex gloves, nine boxes of small plastic bags, and a heat sealer. On testing, the scale proved to have a cocaine-containing "powder residue *** under the glass weighing area and also on the number[ ] keys."

¶ 8 Defendant spoke to officers at the scene. He told them that he and Williams were downstairs when he opened the parcel and that he had opened it about half an hour before the officers arrived. After this brief interview at the house, officers took defendant to the Rockford Police Department. In a longer interview there, he told them that his permanent residence was with his sister on Blinn Street but that he often spent nights at 1104 Cedar with Caviness. He kept most of his possessions at the Cedar Street house because his sister's boyfriend was a thief; he also sometimes received mail there. The heat sealer was a gift from his mother, but everything else the police discovered belonged to others. He had not known that there was cocaine in the parcel. He had previously received parcels at the house that were addressed to people unknown to him. The last such parcel he had taken to "a mailbox store" and "delivered it to return to sender." This time, he opened the package, but only because "[h]e was curious to see what was inside."

¶ 9 Robert Reffett, a Rockford narcotics detective, testified that cocaine users would rarely possess more than a gram of cocaine at a time. The approximately 150 grams of cocaine delivered to defendant was "a large quantity of cocaine," with a street value of "right around $14,800." The presence of firearms, multiple boxes of sandwich baggies, a heat sealer, latex gloves, and a digital scale were all consistent with the business of breaking up large quantities of cocaine for sale in smaller lots.

¶ 10 Defendant was the sole defense witness. He testified that he "live[d] with Betsy Caviness [on Cedar Street], but [his] personal address [was] at [his] sister's house." "That's the address I am back and forth in between. That address is my girlfriend's, and my address with-you know, with my belongings there." His daughter, son, and grandson also lived with Caviness. He was the only resident at home late on the morning of April 1, 2015, but "Tony" (Williams) was also present after about 11:10 a.m. He and Williams were close and often spent time together.

¶ 11 Defendant thought that the parcel had been delivered at "11:30, 11:40. Give or take a few minutes." As far as he could tell, the person who delivered it was an ordinary mail carrier. The supposed mail carrier asked him if " 'Jawanna' Sims [sic ]" lived there, and defendant responded, "[N]obody by that name live here." He knew neither a " 'Jawanna' Sims [sic ]" nor a "Tamika Sims [sic ]." He was not expecting a parcel that day and had not known what was in it.

¶ 12 Defense counsel asked defendant why he signed for the parcel if he did not know the addressee. Defendant responded, "The mail carrier said *** you can take this card and have somebody pick it up or either you can take the package right now. I say, 'Well, what do you think?' He says, 'Well, you want to take the package?' I say, 'I don't, but I will.' " Defense counsel asked him if he said anything to the mail carrier about Caviness. Defendant responded, "I told him that she might know the person who the package was going to, I didn't, and I told him that if he wanted to leave it, you know, I will take it."

¶ 13 Defendant took the parcel and put it on a chair in the downstairs den. He and Williams then discussed a car nearby that Williams thought was for sale, which was of interest to the two of them because they sometimes fixed up cars and resold them. Defense counsel asked defendant to describe the departures and arrivals from the house. The following testimony resulted:

"Q. What did you and your nephew do?
A. We got in my sister's truck. We drove down the street because the car was just about a block down the street by the corner. We looked. There was no for sale sign on the car. He said there was. Nobody in the car. We went back down Preston, back down Tate, back down Cedar Street, and pulled back into the driveway.
Q. That was the first time that you left the house; is that correct?
A. Right.
Q. After you went and looked at this car, what did you and your nephew do?
A. Okay. We went back into the house. We come back out. My sister's truck have problem starting. So it wouldn't start for a couple minutes. So we sit in the truck. When we got the truck started, we was headed over towards my mom's house, but my daughter had called me while we was headed that way and said somebody had hit my mom or did something to my mom.
Q. Okay. It was based on that conversation that you and [your] nephew were then headed towards your mom's?
A. Right.
Q. You had mentioned-we heard testimony from Detective Jimenez that at one point you and your nephew were seen seated in the truck for a couple minutes.
A. That's when it wouldn't start.
Q. Ultimately were you able to get the truck to start?
A. Yeah, her truck do that. When you first crank it up in the morning and you drive it, it cuts off, and then it won't start for a while.
Q. So based on your conversation with your sister or your daughter?
A. My daughter.
Q. That somebody hit your mom, you were en route to your mom's?
A. Right.
Q. Did you ever get to your mom's?
A. We didn't make it to my mom's because when my daughter called and said somebody had hit my mom. On en route to my mom's house, I called my mom, and she says, 'Boy, your daughter was just April fooling you.'
Q. Keep in mind this was April 1st?
A. Right.
Q. As an unfortunate joke as that was, you didn't continue to your mom's house?
A. No, I didn't. I called my daughter back and told my daughter she know she was in trouble.
Q. Did you end up then returning to your house?
A. Yes, we did."

Back at the house, they started watching television. Defendant decided to take the parcel upstairs:

"A. When Tony got up to use the bathroom, I got up and grabbed the box out of the chair and took it upstairs and set it on the foot of the bed and come back downstairs and sit on the couch. Tony come out the bathroom then.
Q. Why did you bring the package upstairs?
A. I took it upstairs. I don't even know why I took it upstairs.
Q. No specific reason?
A. Right.
Q. At some point did you open the package?
A. Yes, I did. Tony's brother called him to help him move a car. Tony said he was going to help his brother move this car. When he left-about three, four minutes later after he left, I went upstairs and opened this box.
* * *
Q. Why did you decide to open the box?
A. I was just curious about it.
* * *
Q. When you opened the box, what did you observe?
A. There was another box on the inside that box. Okay? Then I opened that box. When I opened the box that was on the inside of that box, there was a bunch of toys. When I seen the bunch of toys in the box, I said, 'Oh, maybe it's for my granddaughter.' I don't know.
* * *
Q. What did you do at that point then after seeing these toys?
A. *** I left the bedroom, threw some toilet paper in the bathroom garbage, and walked back down the steps.
Q. And when you were downstairs what, if anything, occurred?
A. When I got to the bottom of the steps, there was a big like boom, and I say what the, and then I went to the front door. When I got *** to the front door there was another big boom as I was opening the door up. There was about 17, 18 guys out there with pistols. I'm trying to keep from being shot."

¶ 14 On cross-examination, the State asked defendant if he recalled telling Lupiani that he "opened the package a half hour after it had been delivered to [the]

residence in the presence of [Williams] in the downstairs room." Defendant denied having said that he opened it in Williams's presence, but he also explained that the police had "come in about four minutes after [he] opened the box." Defendant further denied knowing that there were handguns in the house and insisted that he learned that the guns belonged to Caviness when one of the officers mentioned it while they were still at the house. The State also questioned him about the second time he left the house after the parcel arrived:

"Q. And it is your testimony that you were going to go have lunch at that point?
A. Nope, we wasn't going to have lunch. We were headed towards my mom's car when I got a call from my daughter. When my daughter called me, she was telling me that somebody had hit my mom. We were headed towards my mom's house.
Q. When did you get the call from your daughter that your mom had been hit?
A. When me and Tony left the house, probably when we got to the stop sign.
Q. Okay. You had already decided to leave the house at that point?
A. Yeah.
Q. You returned to the residence?
A. Yes, I did."

The State then returned to questions of the interval between defendant's opening of the parcel and the execution of the warrant:

"Q. Okay. Do you recall telling Inspector Lupiani and Detective Jimenez that you opened up that package approximately a half hour after it had been delivered by the mailman?
A. I recall telling them I opened up that box probably about 30 minutes after they came-well, about four minutes after they came in. When I opened the box, they come in about four or five minutes.
Q. Okay. You didn't tell them you opened it [a] half hour afterwards. Is that your testimony?
A. I didn't tell them-yeah, I told them that I opened it a half hour after, but they had me sitting in a chair in the dinning [sic ] room-in the den, the chair in the den, after they came in for about 20, 25 minutes. I didn't have no time.
Q. It's your testimony that what you were referring to was the half hour after the officers entered the house. That's what you're saying to me?
A. Right. They come in about four or five minutes-"

¶ 15 Lupiani and Jimenez testified as rebuttal witnesses. Lupiani recalled that, almost immediately after detaining defendant, he started questioning him about when the parcel was opened. He asked the question several times, and each time defendant said that it was opened half an hour before the officers knocked on the door. Further, defendant described the same timing when Lupiani and Jimenez questioned him at the police station. Lupiani also testified that the officers did not learn until after they left the house that the firearms belonged to Caviness. Thus, contrary to what defendant testified, he could not have learned who owned them from the officers at the scene. Jimenez testified that, during the later interview, while Lupiani was not present, defendant repeated his assertion that he had opened the parcel half an hour before the officers executed the warrant.

¶ 16 The jury found defendant guilty. Its deliberations were uneventful except that it requested to hear the recording of William's conversation with defendant again.

(With the parties' agreement, the court replayed the recording.)

¶ 17 Defendant filed a posttrial motion in which he asserted, among other things, that the State's evidence was insufficient. The court denied the motion and sentenced defendant to 12 years' imprisonment. Defendant timely appealed.

¶ 18 II. ANALYSIS

¶ 19 On appeal, defendant argues that the State failed to prove beyond a reasonable doubt his knowledge of the parcel's contents. See, e.g. , People v. Fleming , 2013 IL App (1st) 120386, ¶ 72, 370 Ill.Dec. 408, 988 N.E.2d 184 (a defendant's knowledge of the presence of the drugs is an element of the offense of possession of a controlled substance with intent to deliver). He contends that his testimony that he did not know about the cocaine, combined with the evidence that, despite opening the parcel, he did not expose the cocaine, precluded a sustainable guilty verdict.

¶ 20 The State responds that defendant's acceptance and opening of the parcel when he claimed not to know the addressee provided strong circumstantial evidence that he knew what was in it. The State further argues that defendant's having immediately lied, telling the officers that he opened the parcel earlier than he did, showed that he knew that the parcel's contents were a problem for him without his ever having seen the cocaine. Responding to the details of defendant's argument, the State suggests that defendant did not open the internal package containing the cocaine only because he did not have enough time to get through all the layers of wrapping before the officers came to the door.

¶ 21 In reply, defendant points out that, not only did he not open the package that contained the cocaine, he did not even pull it out of the parcel. He suggests that this supports his testimony that his curiosity was satisfied when he saw that the parcel contained toys.

¶ 22 We hold that the evidence of defendant's knowledge was sufficient to sustain the verdict. We review the sufficiency of the evidence under the familiar standard of Jackson v. Virginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), as adopted by People v. Collins , 106 Ill. 2d 237, 261, 87 Ill.Dec. 910, 478 N.E.2d 267 (1985) : when a reviewing court decides a challenge to the sufficiency of the evidence, " 'the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' " (Emphasis in original.) Collins , 106 Ill. 2d at 261, 87 Ill.Dec. 910, 478 N.E.2d 267 (quoting Jackson , 443 U.S. at 319, 99 S.Ct. 2781 ). Although we must accord great deference to the fact finder's decision whether to credit specific testimony, the fact finder's decision is not conclusive. See People v. Cunningham , 212 Ill. 2d 274, 280, 288 Ill.Dec. 616, 818 N.E.2d 304 (2004).

¶ 23 Defendant challenges the sufficiency of the State's proof of the charged offense's knowledge element; he argues that the State failed to show that he knew that the parcel contained cocaine. The State generally must prove knowledge of this kind by circumstantial evidence, as it is not susceptible to direct proof. E.g. , People v. Hodogbey , 306 Ill. App. 3d 555, 559-60, 239 Ill.Dec. 775, 714 N.E.2d 1072 (1999). Circumstantial evidence alone can be sufficient to prove a necessary element beyond a reasonable doubt. See, e.g. , Fleming , 2013 IL App (1st) 120386, ¶ 74, 370 Ill.Dec. 408, 988 N.E.2d 184.

¶ 24 Defendant argues that his behavior after receiving the parcel was inconsistent with his knowledge that the parcel contained contraband:

"In this case, defendant initially expressed reluctance to sign for the package because it was not addressed to anyone living in the house. *** Believing the package may have been destined for his girlfriend, defendant decided to sign for the package. *** Out of curiosity, he opened the package to see what was inside. When he opened the box and saw toys laying [sic ] on top of the bag, he looked no further. Defendant did not see or touch the secreted cocaine. *** This evidence shows defendant innocently signed for and looked inside the package. This evidence is also consistent with defendant's claim that he did not know that cocaine was in the package. *** Therefore, the evidence is insufficient to establish the defendant's guilt beyond a reasonable doubt."

¶ 25 This argument is unpersuasive. In evaluating the sufficiency of the evidence, we consider the evidence from the whole trial. Defendant is correct that the State's case would have gained strength if the evidence had shown that he rushed to expose the cocaine-containing package. That he left that package unexposed is thus some evidence to suggest his lack of knowledge. However, that bit of evidence in his favor does not so outweigh the evidence against him as to preclude proof beyond a reasonable doubt of the offense's knowledge element.

¶ 26 In its case-in-chief, the State showed that defendant behaved in a way that was implausible for a person who did not know what the parcel contained. Mere innocent curiosity is not an adequate explanation for defendant's opening of a parcel addressed to someone unknown to him. To be sure, one can imagine that defendant might have acted to exercise control over Caviness and the children or to satisfy some form of suspicion. But no evidence suggested that any such alternative explanation was likely. Moreover, considering that defendant lied about when he opened the parcel and that he lived in the presence of supplies and materials useful in the drug trade, such other explanations would have been unconvincing even if defendant had given them.

¶ 27 In addition, the fact that the officers arrived at defendant's door only minutes after he triggered the alarm weakens the inference that he urges-that he left the cocaine in the unexposed box under the toys because he did not know that it was there. The State's photographic exhibits show that both the outer and inner boxes were closed with filament tape. Thus, the strongest inference is that he simply had not had enough time to expose the cocaine. Indeed, to refute this inference was the only plausible reason why defendant would have falsely claimed that he opened the parcel earlier.

¶ 28 Looking beyond the State's case-in-chief, we conclude that defendant's own testimony only added to the circumstantial evidence in the State's favor. When a defendant elects to testify to explain inculpatory circumstances, the trier of fact may weigh any inconsistencies or implausibilities in that testimony against the defendant. See, e.g. , People v. Nyberg , 275 Ill. App. 3d 570, 579, 211 Ill.Dec. 873, 656 N.E.2d 65 (1995) ("When a defendant elects to explain the circumstances of a crime, he is bound to tell a reasonable story or be judged by its improbabilities and inconsistencies."). Defendant's explanations for his two departures from the house were implausible, especially in combination. Defendant claimed that each departure was the result of someone misleading him. He testified that he and Williams drove away from the house the first time because Williams had told him that a car "a block down the street" had a "for sale"

sign on it. But Williams had made a mistake; there was no sign. And defendant testified that he and Williams drove away from the house the second time because his daughter had told him that someone had hit his mother. But his daughter was pulling an April Fools prank on him; she had completely fabricated the incident.

¶ 29 Further, defendant's explanation for the time he and Williams spent sitting in the truck made little sense. Defendant claimed that, although the truck started without difficulty the first time, he had to wait "a couple minutes" to get it to go the second time; he could not explain why the nearby surveillance officer could not hear him trying to start the truck. And defendant, despite implying that he was a skilled part-time mechanic, lacked any specific explanation for the truck's behavior. Also, although people do drive short distances, it is odd that defendant would drive the truck a few blocks if he knew, as he testified, that by doing so he would make it hard to start if he needed it again.

¶ 30 Further still, despite defendant's having to wait to get the truck started, he claimed that he did not think to call his mother, and thus learn of the prank, until he was on his way there. He claimed that this explained a second round-trip through his neighborhood not long after the package arrived. Based on all this, the jury could reasonably conclude that defendant was lying about his two trips and, based on that inference, could further infer that he was actually engaged in countersurveillance. The jury was free to add that inference to the circumstantial evidence of defendant's knowledge from the State's case-in-chief. The combined evidence gave the jury a more-than-adequate basis to conclude that defendant knew that the cocaine was in the parcel, even if he did not rush to dig it out.

¶ 31 Defendant relies on Hodogbey to suggest that we may not properly consider his testimony in deciding whether the State met its burden of proof. Although Hodogbey supports defendant's position, we nevertheless disagree. The Hodogbey court, addressing a case with many factual commonalities with this one, stated as follows:

"Because the burden of proof never shifts, a reasonable doubt is created by the insufficiency of the evidence introduced by the State. People v. Coulson , 13 Ill. 2d 290, 296 [149 N.E.2d 96] *** (1958). Indeed, [i]f a conviction is to be sustained, it must rest on the strength of the People's case and not on the weakness of the defendant's case. [Citations.]" (Emphasis added and internal quotation marks omitted.) Hodogbey , 306 Ill. App. 3d at 561 [239 Ill.Dec. 775, 714 N.E.2d 1072].

The Hodogbey court therefore held that, in deciding the sufficiency of the State's evidence, it could not weigh in the State's favor the negative inferences that the jury might have drawn if it concluded that the defendant had testified falsely. In so holding, the Hodogbey court incorrectly extended the holding of Coulson . Per Coulson , "it is the insufficiency of the People's evidence which creates [reasonable] doubt. If a conviction is to be sustained, it must rest on the strength of the People's case and not on the weakness of the defendant's case." (Emphasis added.) Coulson , 13 Ill. 2d at 296, 149 N.E.2d 96. The " People's evidence" (Coulson , 13 Ill. 2d at 296, 149 N.E.2d 96 ) is not solely "the evidence introduced by the State" ( Hodogbey , 306 Ill. App. 3d at 561, 239 Ill.Dec. 775, 714 N.E.2d 1072 ). Hodogbey aside, even as Illinois cases consistently recognize that the overall burden of proof never shifts from the State, they also consistently recognize that a trier of fact may draw negative inferences when a defendant chooses to testify and gives an implausible explanation for his or her behavior. This court's decision in People v. Irby , 237 Ill. App. 3d 38, 66, 177 Ill.Dec. 177, 602 N.E.2d 1349 (1992), is typical:

"A conviction must rest on the strength of the State's case, not the weakness of defendant's case. [Citation.] However, when a defendant elects to explain the circumstances of what occurred, he is bound to tell a reasonable story or be judged by its improbabilities."

¶ 32 To be sure, a rule that a guilty verdict could be sustained solely by assuming that the trier of fact drew a negative inference because it deemed a witness incredible might force a defendant to choose between an active defense and a meaningful appeal: "[i]f negative inferences, based on demeanor evidence, were adequate in themselves to satisfy a rational juror of guilt beyond a reasonable doubt, appellate courts might not be able to provide meaningful review of the sufficiency of evidence." United States v. Jenkins , 928 F.2d 1175, 1179 (D.C. Cir. 1991). The State generally should not be able to succeed on appeal by claiming that it adequately proved an element merely because the defendant testified to deny the element and the jury might have disbelieved him or her on that point. But that is not what is at issue here. Here, we need not resort to assumptions about defendant's demeanor to recognize that his testimony was partly implausible. That implausibility was positive evidence favoring the State, and when we consider the sufficiency of the evidence as a whole, we may weigh that implausibility in the State's favor.

¶ 33 Although we disagree with the reasoning of Hodogbey , we also note that it is factually distinguishable, as are the cases on which it relies. As we noted, Hodogbey had many factual commonalities with the case here, but it also had a critical difference: the defendant in Hodogbey signed for a package that contained heroin but never opened it. Hodogbey , 306 Ill. App. 3d at 557, 239 Ill.Dec. 775, 714 N.E.2d 1072. Similarly, two Pennsylvania cases that the Hodogbey court treated as persuasive authority favoring reversal, Commonwealth v. Sterling , 241 Pa.Super. 411, 361 A.2d 799, 801 (Pa. Super. Ct. 1976), and Commonwealth v. Rambo , 488 Pa. 334, 412 A.2d 535, 536-37 (Pa. 1980), involved unopened parcels of contraband. As we suggested above, people ordinarily do not open packages that are not addressed to them. In light of all the circumstances, defendant's accepting and opening of the parcel addressed to the unknown "Tamika Simms" was sufficiently unusual that the jury could properly infer that defendant knew that the parcel was in fact for him.

¶ 34 III. CONCLUSION

¶ 35 For the reasons stated, we hold that the State's evidence was sufficient for a reasonable jury to conclude that defendant knew that the parcel contained cocaine. We therefore affirm defendant's conviction. As part of our judgment, we grant the State's request that defendant be assessed $50 as costs for this appeal. 55 ILCS 5/4-2002(a) (West 2016); see also People v. Nicholls , 71 Ill. 2d 166, 178, 15 Ill.Dec. 759, 374 N.E.2d 194 (1978).

¶ 36 Affirmed.

Justices Schostok and Spence concurred in the judgment and opinion.

      The inferences at issue in Sterling are dissimilar to those here. The defendant in Sterling told officers that he was suspicious that a parcel sent to his house did contain drugs and said that he had "no intention" of opening it. Sterling , 361 A.2d at 801. That case thus turned largely on whether the defendant had declined to exercise dominion over the contraband and not on whether the defendant knew of the drugs' presence.


text:
    Jeffrey HARTNEY, Plaintiff-Appellee, v. Robert BEVIS, Defendant-Appellant.
    No. 2-17-0165
    Appellate Court of Illinois, Second District.
    Opinion filed February 23, 2018
    Timothy P. Whelan, of Timothy Whelan Law Associates, Ltd., of Glen Ellyn, for appellant.
    Patrick J. Williams and Vincent C. Mancini, of Ekl, Williams & Provenzale, LLC, of Lisle, for appellee.
   JUSTICE BIRKETT delivered the judgment of the court, with opinion.

¶ 1 Plaintiff, Jeffrey Hartney, initiated a supplementary proceeding to enforce a judgment against defendant, Robert Bevis. Defendant appeals the denial of his motion to apply his personal-property exemption (see 735 ILCS 5/12-1001(b) (West 2016) ) to certain stock he owns. We affirm, holding that the involuntary dismissal of defendant's prior appeal raising the same issue bars his current challenge.

¶ 2 I. BACKGROUND

¶ 3 Plaintiff obtained a judgment against defendant in an action for fraudulent misrepresentation. See Hartney v. Bevis , 2015 IL App (2d) 150005-U, 2015 WL 8968886. In a supplementary enforcement proceeding, defendant disclosed the existence of stock he owns in a company called Law Weapons. Plaintiff filed a motion for the turnover of the stock to the sheriff for sale, with the proceeds to be applied in partial satisfaction of the judgment. Defendant opposed the turnover, claiming the stock as part of his personal-property "wildcard" exemption under section 12-1001(b) of the Code of Civil Procedure ( 735 ILCS 5/12-1001(b) (West 2016) ). Defendant asked in the alternative that the turnover be stayed pending this court's decision in defendant's appeal of the underlying judgment. Defendant attached to his response an affidavit from a certified public accountant who averred, based on his review of the finances of Law Weapons, that the stock had a "negative tax book value."

¶ 4 At a hearing on August 27, 2015, the court ordered that the stock be relinquished to the sheriff and sold. The court explained:

"[W]ith respect to the personal property, wildcard exemption, I don't know that it's necessary for the CPA to submit an affidavit as to book value or that we have a hearing to determine the value. The value could be determined at the Sheriff's sale and the wildcard exemption applied to whatever the proceeds are. I mean, that will determine-I know through experience that book value is not necessarily market value. And the wildcard exemption should apply to market value, not book value.
So the sale of a stock is the way to best determine what the true market value is and to what extent the personal property exemption can be applied."

The court also denied defendant's alternative request for a stay of the turnover.

¶ 5 On September 15, 2015, defendant filed a notice of appeal from the August 27 order. In the notice, defendant characterized the order as "requiring the turnover and sale of the defendant['s] shares of stock, before allowing the defendant to utilize his personal property exemption for the stock." (Emphasis in original.) The case was docketed as No. 2-15-0929. In his docketing statement, filed September 24, 2015, defendant identified one of the issues on appeal as "whether the trial court improperly denied defendant['s] stay and immediate use of his personal exemption, for his shares of stock in his family business."

¶ 6 In December 2015, this court affirmed the underlying judgment. See Hartney , 2015 IL App (2d) 150005-U. In January 2016, the trial court stayed the sale of the stock, pending further order. Meanwhile, in July 2016, this court dismissed defendant's appeal in case No. 2-15-0929 for his failure to file an appellate brief. In August 2016, the trial court lifted the stay on the sale of the stock. In October 2016, the sheriff sold the stock to plaintiff at auction for $1.

¶ 7 In November 2016, defendant filed his "second motion for exercise of his statutory wildcard exemption." Defendant asked that the exemption be applied against the stock itself and not the proceeds of the sale. At a hearing in January 2017, the trial court declined to void the sale of the stock and reaffirmed that the exemption applied only to the proceeds of the sale.

¶ 8 Defendant filed this timely appeal of the January 2017 order.

¶ 9 II. ANALYSIS

¶ 10 Defendant contends on appeal that the personal-property exemption applies to the stock itself. Plaintiff's lead argument in response is that defendant is estopped from challenging the January 2017 order, because he abandoned his appeal in case No. 2-15-0929. Plaintiff notes that, according to the notice of appeal and docketing statement in that prior appeal, defendant intended to raise the same issue that he presents here, namely, whether the personal-property exemption entitles him to retain the stock. We agree with plaintiff that defendant is barred from a successive appeal on the same issue.

¶ 11 Depending on what occasioned it, the dismissal of an appeal can have preclusive effect on a subsequent appeal involving the same issue. First, the voluntary dismissal of an appeal has no preclusive effect. An appellant has the right to dismiss an appeal prior to a decision on the merits. See People ex rel. Waite v. Bristow , 391 Ill. 101, 111, 62 N.E.2d 545 (1945) ; People v. Mutesha , 2012 IL App (2d) 110059, ¶ 22, 366 Ill.Dec. 671, 980 N.E.2d 764. A voluntary dismissal leaves the appellant in the same position he was in before he filed the appeal. Bristow , 391 Ill. at 112, 62 N.E.2d 545. The appellant is "free to perfect another appeal in any manner authorized by statute," and if the appellant "fail[s] to exercise or pursue that right, [he is] prejudiced, not by the order dismissing the action, but by [his] own inaction." Id.

¶ 12 As for involuntary dismissals, the following summary reflects Illinois law on that subject:

"The [involuntary] dismissal of an appeal or writ of error, even on a technicality, generally leaves the judgment of the lower court in full force as an estoppel. However, this is not the rule where the dismissal is for a defect in the appeal proceedings not attributable to appellant. ***
The dismissal of an appeal for failure to prosecute acts as a judgment on the merits and becomes res judicata , thus barring further direct appeal. However, an appellate court's dismissal of a first appeal as premature is not a judgment or decree upon the merits, and thus a second appeal from the dismissal of the complaint is not barred under the doctrine of res judicata ." 50 C.J.S. Judgments § 984 (2015).

The case of Dewan v. Ford Motor Co. , 343 Ill. App. 3d 1062, 278 Ill.Dec. 673, 799 N.E.2d 391 (2003), is cited for this last proposition. In Dewan , the plaintiff appealed both the dismissal of his complaint and the denial of his motion for leave to file an amended complaint. At the time of the appeal, the plaintiff's petition for attorney fees was pending in the trial court. The appellate court dismissed the appeal without explanation. When, on remand, the trial court refused to set a briefing schedule or hearing on the plaintiff's fee petition, he appealed that order as well as the prior orders he had previously attempted to appeal. Id. at 1067-68, 278 Ill.Dec. 673, 799 N.E.2d 391. The defendant claimed that this second appeal was barred by the dismissal of the plaintiff's first appeal. The appellate court disagreed. The court determined that the dismissal of the prior appeal was for lack of jurisdiction, as the pending fee petition rendered the remaining orders unappealable in the absence of a finding under Illinois Supreme Court Rule 304(a) (eff. Feb. 1, 1994), which the trial court had not provided. The appellate court held that, because no underlying issues were decided in the first appeal, there was no bar to the subsequent appeal. Dewan , 343 Ill. App. 3d at 1073-74, 278 Ill.Dec. 673, 799 N.E.2d 391.

¶ 13 The consequences are different for an involuntary dismissal that is based on "a defect in the appeal proceedings *** attributable to appellant" ( 50 C.J.S. Judgments § 984 (2015) ), that is, where the appellant fails to properly conduct the appeal of an otherwise appealable order. Such dismissals have preclusive effect on subsequent appeals. In Speck v. Zoning Board of Appeals , 93 Ill. App. 3d 460, 48 Ill.Dec. 898, 417 N.E.2d 630 (1980), the Zoning Board of Appeals for the City of Chicago (Board) approved the applicants' request for a special-use permit. The trial court later reversed the Board's decision. The Board appealed to the appellate court. The applicants filed their own appellate brief but did not file a notice of appeal. Consequently, the appellate court struck their brief and dismissed them from the proceedings. Id. at 463, 48 Ill.Dec. 898, 417 N.E.2d 630. The supreme court accepted the case for review. In its decision, the court noted that, because the applicants had failed to appeal the order of dismissal, "it became binding and, as a consequence, the applicants [were] not parties to this appeal." Speck v. Zoning Board of Appeals , 89 Ill. 2d 482, 484, 60 Ill.Dec. 643, 433 N.E.2d 685 (1982).

¶ 14 In Department of Transportation v. Shaw , 36 Ill. App. 3d 972, 345 N.E.2d 153 (1976), aff'd in part, rev'd in part on other grounds , 68 Ill. 2d 342, 12 Ill.Dec. 177, 369 N.E.2d 884 (1977), the defendants filed for a writ of mandamus to compel the State to institute eminent-domain proceedings. The trial court issued the writ. The State appealed that decision but also initiated eminent-domain proceedings. The appellate court dismissed the State's appeal, because the State provided an inadequate record. See Shaw v. Kronst , 9 Ill. App. 3d 807, 811, 293 N.E.2d 153 (1973). Meanwhile, in the eminent-domain proceedings, the jury found that a taking had occurred and it awarded compensation. The State appealed that decision as well. In that appeal, the appellate court held that the dismissal of the State's appeal in the mandamus action "render[ed] the decision of the circuit court final on the merits as to questions actually in issue and decided. [Citations.]" Shaw , 36 Ill. App. 3d at 980, 345 N.E.2d 153. "[The] dismissal of the prior appeal was equivalent to an affirmance [citation], leaving the judgment of the lower court in full force as an estoppel." Id.

¶ 15 The earlier case of Mederacke v. Becker , 56 Ill. App. 2d 128, 205 N.E.2d 519 (1965), was a dispute over ownership of property. The defendants filed a direct appeal to the supreme court from the trial court's May 8, 1961, order directing them to relinquish to the plaintiff the property in question. The supreme court dismissed the appeal when the defendants failed to file the record on appeal. Two years later, following an accounting, the trial court ordered the defendants to pay rent for the time that the property was in their possession. The defendants appealed that order and also attempted a second appeal of the May 1961 order. The appellate court held that the dismissal of the first appeal precluded a second appeal of the May 1961 order. Id. at 134-35, 205 N.E.2d 519. The court said:

"[O]ur courts have consistently held that a party who perfects his appeal has a duty to proceed and to complete the review of the issue or issues. The courts have rejected the argument that the appellant who perfects an appeal may elect to abandon or disregard such appeal and proceed with a subsequent second appeal. On the contrary, they have held that the Legislature intended that a party should have but one appeal." Id. at 135, 205 N.E.2d 519.

¶ 16 Applying the foregoing principles, we hold that defendant is barred from the challenge he presents in the current appeal. He raises the same issue that he articulated in his notice of appeal and docketing statement in case No. 2-15-0929: whether the trial court erred in applying the personal-property exemption not to the stock itself but to the proceeds of its sale. By incurring an involuntary dismissal of that previous appeal through his failure to file an appellate brief, defendant is barred from revisiting the issue in the present appeal.

¶ 17 III. CONCLUSION

¶ 18 For the foregoing reasons, we affirm the judgment of the circuit court of Du Page County.

¶ 19 Affirmed.

Justices Hutchinson and Schostok concurred in the judgment and opinion.