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People v. Kilgore

NOVEMBER 17, 1975.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

JIMMY DALE KILGORE, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Du Page County; the Hon. BRUCE R. FAWELL, Judge, presiding.

MR. PRESIDING JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT:

Following a bench trial defendant was convicted of theft exceeding $150 and of possession of a motor vehicle with a falsified identification number (Ill. Rev. Stat. 1973, ch. 38, par. 16-1(a)(1), and ch. 95 1/2, par. 4-103(b)). He was sentenced to a single term of 3-10 years in the penitentiary which included a mandatory 3-year parole term. This court permitted defendant to file a late notice of appeal. He contends that he was not proved guilty beyond a reasonable doubt, that he was deprived of a fair trial, and that his sentence was both improper and excessive.

Defendant's motion to suppress evidence had been denied prior to trial. At the trial the testimony of police officers at the prior hearing was stipulated in lieu of calling the witnesses to again testify at the bench trial. The theft of the car from a dealer and its value were also stipulated as was the admission of various items of documentary evidence.

Upon this record it appears that on August 16, 1971, at approximately 2 A.M. a Cadillac automobile being driven by defendant's wife with defendant as a passenger was observed by James Bock, a police officer of the Village of Bensenville, when it remained at an intersection through an entire green light and proceeded to move on when the light turned yellow. The officer called ahead to have the vehicle stopped. Officer Kelly saw the car as it went through a red light and stopped it. Meanwhile officer Bock made a registration check on the license plates and found that they belonged to the defendant but were issued for an automobile other than the Cadillac.

When officer Bock arrived on the scene he asked defendant if he could see the registration for the license plates. Defendant produced a bill of sale for the Cadillac from an auto parts company under date of July 1, 1971, for $500 "as is shown." Defendant also produced an application for an Indiana title. He said he did not have the registration because it was in the process of being transferred. The officer checked the number on the bill of sale with the "lube tab" on the door pillar and found that they matched. When the officer remarked that the $500 price was remarkable for "such a nice automobile" defendant responded that he had bought the car as a total "burn-out," that he had gone to Frank Nitti's on Irving Park Road and purchased the interior parts and had refinished the car. The officer testified that the vinyl top appeared to be slightly worn and that he could not see any place in the interior of the car where anything had been replaced.

The officer then attempted to check the vehicle identification number in a reference book. He noted that any serial number would have to be prefaced with the letter J for this particular model. He then asked defendant to drive the vehicle to the station so he could check it further because he did not know the location of the vehicle identification numbers. The car was impounded at the station until the officers could see the hidden identification number in better light and it was found that there was a different number than that recorded on the bill of sale or the lube tab. Upon further investigation it was found that the Cadillac had been reported stolen from a dealer on May 20, 1971.

As a result of defendant's discovery process it was also determined that the auto parts company had applied for an Indiana certificate of title bearing the false vehicle identification number.

The defendant did not testify either at the motion to suppress, or at the trial in which the previous testimony was stipulated.

The stipulated value of the Cadillac was $2,413.14, the amount paid by the insurance company to the dealer from whom it had been stolen.

We first conclude that the evidence was sufficient to prove that defendant was guilty of the offenses charged beyond a reasonable doubt.

• 1, 2 In order to warrant a conviction based on the circumstances of a defendant's recent exclusive and unexplained possession of a stolen vehicle or a vehicle with falsified identification numbers the evidence must be of "such a conclusive nature as to lead, on the whole, to a satisfactory conclusion, and such as to produce, in effect, a moral certainty that the accused, and no one else, committed the crime, and it must be such that the circumstances proved cannot, upon any reasonable theory, be true and the defendant innocent." (People v. Hooper, 364 Ill. 320, 325 (1936). See also People v. Burton, 6 Ill. App.3d 879, 890-891 (1972).) It is not necessary, however, that circumstantial evidence exclude every possibility of the defendant's innocence or produce absolute certainty in the mind of the trier of the facts. (People v. Smith, 107 Ill. App.2d 267, 270 (1969).) And a defendant who chooses to explain his possession of stolen property must tell a reasonable story or be judged by its improbabilities. People v. Ward, 31 Ill. App.3d 1022, 335 N.E.2d 57, 60 (1975).

The combination of the circumstances, which included the payment of $500 for a car valued at more than $2,000, and the falsified vehicle identification numbers on the bill of sale in defendant's possession, require that defendant furnish a reasonable explanation to avoid the clear inference of guilty knowledge. The remoteness of the possession, of course, weakens the inference but it does not prevent its operation. (People v. Litberg, 413 Ill. 132, 137-138 (1952); People v. Pride, 16 Ill.2d 82, 91-92 (1959).) The explanation which the trier of the facts did not accept as credible was that defendant had purchased a burned out car and had added value thereafter. The judge could properly conclude, however, that the defendant's statement to the officer was not reasonable since the testimony of the officer as to the condition of the car refuted it. The further fact that defendant did not present invoices or receipts which could have corroborated his story that he bought parts to repair the car, and his failure to complete the title application or apply for plates in the time available further reduced the credibility to be attached to his theory of the case.

People v. Watson, 17 Ill. App.3d 505 (1974), cited by the defendant is inapposite. In Watson, the only evidence offered by the State other than proof that the vehicle was stolen was that the defendant as an employee of a junk yard was to tow the car to the junk yard at the request of the thief. There were no other facts which could cast doubt on the reasonableness of the explanation of innocence.

• 3 Defendant next argues that he was deprived of the assistance of counsel by a combination of circumstances. The case came up for a jury trial originally on March 27, 1972, and defendant appeared with his private attorney Samuel Banks. Banks had previously represented defendant and had appeared for him on the hearing seeking to suppress evidence. Banks sought to withdraw, claiming that he had been unable to contact his client between the February 2, 1972, date when the matter was set for trial and the date of March 23, 1972, and that this had resulted in Banks withdrawing from representation of defendant in a pending Cook County criminal charge. Banks told the court that on March 23 defendant had told him that he had hired another attorney, a Mr. Jensen, and that Banks had advised ...


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