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07/26/96 PEOPLE STATE ILLINOIS v. KEVIN L. NASH AND

July 26, 1996

PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
KEVIN L. NASH AND CHARLES H. CALKINS, DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court for the 13th Judicial Circuit Bureau County, Illinois. Nos. 94-CM-581 AND 94-CM-582. Honorable Terence M. Madsen, Judge, Presiding.

Released for Publication September 4, 1996.

Present - Honorable William E. Holdridge, Presiding Justice, Honorable Tom M. Lytton, Justice, Honorable Kent Slater, Justice. Justice Lytton delivered the opinion of the court. Holdridge, P.j., dissenting and Slater, J., concurring.

The opinion of the court was delivered by: Lytton

The Honorable Justice LYTTON delivered the opinion of the court:

Defendants Kevin L. Nash and Charles H. Calkins were charged in separate complaints with violating section 5(b) of the Timber Buyers Licensing Act (225 ILCS 735/5(b) (West 1992)), in that they knowingly appropriated the timber of Dianne Meyers without her consent. The cases were consolidated and a bench trial was held on January 25, 1995. The defendants were convicted and sentenced to fourteen days incarceration. We reverse.

I. FACTS

At trial, the prosecution called as its first witness Tyra Johnson, the daughter of Dianne Meyers. Johnson testified that in the fall of 1993, the previous owner of the real estate, Peter Reviglio, and defendant Charles Calkins came to Meyers' property and spoke with Meyers, Johnson and her brother Trent Thomas. Calkins requested and received permission to walk through Meyers' property to get to the location where they were cutting a neighbor's trees. Johnson testified that she and her brother offered the men a copy of a survey, but this offer was declined. She did not tell Calkins and Reviglio that Meyers claimed land on the other side of the fence.

According to Johnson, Dianne Meyers later telephoned Calkins to confront him because trees had been cut on her property. Calkins came to Meyers' home and offered to pay $100, but Meyers refused. Calkins then offered $200, which was also refused. Later, Johnson and her brother had a long conversation with Calkins, who said he had made an honest mistake. Johnson testified that five large oak trees were cut on Meyers' property.

Trent Thomas testified that he told Reviglio and Calkins that the fence line was not the property line. Thomas stated that there were property stakes, and one of the stakes was next to a wooden stake with a bright orange flag on it. Thomas offered Reviglio and Calkins a map, but they declined the offer. After Meyers' trees were cut down, Calkins claimed that it was mistake and that the trees were diseased. Thomas had not seen any signs of disease on the trees.

On cross-examination, Thomas testified that the adjoining neighbor is Joanne Westphal. He never told Westphal that Meyers claimed seventy-seven feet on the other side of the fence because this was on the plat and thus was public knowledge.

Joanne Westphal testified that she signed a deed selling timber on her property to Quality Wood, Inc. Westphal, who was paid $2500, told Calkins that she owned the property up to the fence line. Westphal stated that until this incident she was unaware that Dianne Meyers claimed seventy-seven feet of land on Westphal's side of the fence.

The prosecution's final witness was Mark Walczynski, a conservation police officer assigned to investigate the case. Walczynski testified that five trees were cut on Meyers' property and the stumps did not appear to be diseased. He also stated that Kevin Nash was the license holder for Quality Wood, Inc., and Gregory Nash is the company's authorized agent.

The defense called Alfred Hueneburg, who surveyed the land in 1985. Hueneburg stated that the standing fence line did not correspond with the property line. Meyers' property extends seventy-seven feet beyond the fence. Hueneburg testified that he had marked the southern point of the property line with an iron bar that sticks above the ground by five or six inches, and the northern point with a railroad spike in the center line of the roadway. This spike was flush with the road surface. Hueneburg said he marked these two points with paint or ribbons, but he was sure the markers had been destroyed in the interim.

Hueneburg testified that the seventy-seven foot strip had been conveyed to Meyers in a separate quit claim deed. Without measuring the property itself, a person could not determine the location of the property line ...


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