APPEAL from the Circuit Court of Kankakee County; the Hon.
JOHN F. MICHELA, Judge, presiding.
MR. JUSTICE ALLOY DELIVERED THE OPINION OF THE COURT:
Defendant Dennis Ward appeals from a conviction and sentence for theft and, also, from a revocation of probation.
On September 13, 1978, the defendant, 18-year-old Dennis Ward, was convicted by a jury of the theft of a motorcycle valued at over $150. A sentencing hearing was held on December 18, 1978, and sentence was entered on December 20. The appellant was sentenced to four years imprisonment plus one-year mandatory supervised release, with credit given for the 153 days he had spent in custody prior to sentencing. At the time of the commission of the theft, the appellant had been on probation for eight months. He had been sentenced on September 12, 1977, to three years probation for burglary. On December 18, 1978, at the judge's recommendation, a petition to revoke probation was filed. The following day, the appellant pleaded guilty to having violated his probation, in that he had been convicted of another crime. He was thereupon sentenced to three years' imprisonment, plus two years' mandatory supervised release, to be served concurrently with his term for theft, with credit to be allowed for the 153 days he spent in custody and also for the 423 days he had already been on probation. In this consolidated appeal, Dennis Ward appeals his conviction for theft, his sentence for that crime, and the revocation of his probation. The appellant's first contention is that he had not been proven guilty beyond a reasonable doubt.
The record shows that on May 19, 1978, John DeMik and his 14-year-old son, Barry, noticed that Barry's burnt orange 1971 motorcycle was missing from their garage. Pembroke police chief Clint Butler testified that he had seen the appellant, during the week of May 20, riding the motorcycle in question. It was then painted blue. Every time Chief Butler was observed by the appellant, Ward would ride off into the fields. Dennis Ward explained this conduct was the result of his having neither a driver's license nor a vehicle license plate. On May 28, Chief Butler stopped the appellant while the latter was stalled in traffic during the annual rodeo. The motorcycle at that time was painted black. Chief Butler testified that the appellant told him the title to the bike was with his father at home. Another witness, a security guard at a local day-care center, testified that he had seen the appellant riding the motorcycle in question during the week of May 20. At that time it was painted orange.
On May 29, the appellant left the motorcycle with Dennis Wilson, a friend of his, because it was "broken." The motorcycle was seized by the police at Wilson's house and was identified by the DeMiks as their missing bike. Beneath the black paint was a layer of blue paint, and below that, the original orange paint.
The next day, when informed that the police had seized the motorcycle, the appellant Ward called them on the telephone to inquire about it and was told that the bike had been stolen. The defendant then informed the police that he had purchased the bike from a Tyrone Green and that Green had the title. The appellant testified that he then went to see Green, that Green denied that the motorcycle was stolen, and that he presented the appellant with a certificate of title. Green was never subsequently located, although the appellant and his father both claimed to have looked for him.
The appellant testified that he had never told Chief Butler that his father had the title, but had consistently claimed that Green had the title. He testified that he met Tyrone Green on April 29, 1978. He further testified that he agreed to fix Green's car in exchange for a motorcycle. The next day, he went to Green's house and test rode the orange motorcycle in question. He next saw the motorcycle the following weekend, by which time it had been painted blue. Green let him ride the motorcycle the entire next week.
The indictment of the appellant charged theft, in that he "did knowingly exert unauthorized control over property of John D. DeMik * * * intending to deprive [him] permanently of the possession, use and benefit" of the motorcycle. The elements of the crime of theft are set out in section 16-1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 16-1). Both possession and knowledge that the property was stolen are essential elements.
1 The appellant claims that it was not proven beyond a reasonable doubt that he knew that the motorcycle was stolen. The jury was instructed that "[i]f you find that the Defendant had exclusive possession of recently stolen property, and there was no reasonable explanation of his possession, you may infer that the Defendant obtained possession of the property by theft." This instruction was proper. (People v. Franceschini (1960), 20 Ill.2d 126, 169 N.E.2d 244; People v. Bennett (1954), 3 Ill.2d 357, 121 N.E.2d 595.) The appellant contends that, despite this presumption, the State failed to prove beyond a reasonable doubt that he knew the motorcycle was stolen property, basing this contention on "defendant's reasonable and uncontradicted explanation of his possession of the motorcycle, which negated whatever inference of guilt may have arisen from the presumption."
The record shows that the appellant's story was contradicted. Chief Butler testified that the appellant told the chief that his father had the title at home. The appellant denies having made this statement. He maintains that he has consistently claimed to have obtained the motorcycle in exchange for work done for Green. The appellant stated that he first saw and rode the motorcycle on April 29, 1978, and that it was painted blue the following weekend. Yet the motorcycle was last seen by Mr. DeMik on May 19, 1978. We find nothing unreasonable in the jury concluding that Mr. DeMik was telling the truth and that Dennis Ward was not.
2 While the appellant's story was not preposterous on its face, we can find no error in a jury's determination that it was not reasonably believable. The defendant never produced the Tyrone Green that Ward asserted sold Ward the motorcycle in exchange for repair work on Green's car. No one other than defendant testified that he had ever met Mr. Green. The appellant's father searched for him without success. The police also searched for him without success. Appellant claimed to have purchased the motorcycle from Green and claimed to have found Green and received a title from him after the motorcycle was seized by the police. The title produced was an Indiana title. It was not in the name of Tyrone Green, but rather in the name of Paul Roof, never further identified. No transfer was indicated on the back side of it showing any involvement with it by one Tyrone Green. The front side of it showed erasures and re-inking. All of the data linking this title to the motorcycle was inked in and altered. The only typewritten, unaltered, information on it was the name of Paul T. Roof, his address, and a title number. The only claim of substantiation that the defendant presents for his story is that he did not run away from Chief Butler at the rodeo. The appellant claimed that he no longer feared the Chief because the motorcycle bore, by then, a "license applied for" sticker. The jury could well have found that, for some reason other than his innocence, the appellant was not compelled to run away from the Chief while riding on the repainted motorcycle. Perhaps it found that, because the motorcycle was stalled in traffic, the appellant had been precluded from making his usual escape upon being approached by the Chief. The jury chose not to believe Dennis Ward's story.
There are numerous cases factually similar to the instant case, in which a jury chooses to disbelieve the explanation offered by the defendant for his possession of recently stolen property. See, e.g., People v. Allen (1977), 48 Ill. App.3d 870, 363 N.E.2d 616; People v. McIntosh (1977), 48 Ill. App.3d 694, 363 N.E.2d 128; People v. Helm (1973), 10 Ill. App.3d 643, 295 N.E.2d 78; People v. Kilgore (1975), 33 Ill. App.3d 557, 338 N.E.2d 124.
The appellant argues that punishing him for his theft conviction and revoking his probation on the basis of that conviction constitutes double jeopardy. The appellant acknowledges that the settled law in this State is that jeopardy does not attach at a revocation hearing. (People v. Vahle (1978), 60 Ill. App.3d 391, 376 N.E.2d 766; People v. Howell (1977), 46 Ill. App.3d 300, 360 N.E.2d 1212; People v. Warne (1976), 39 Ill. App.3d 894, 350 N.E.2d 836.) Instead, he argues that the law should be changed. Defendant-appellant's argument is based upon the case of People v. Gray (1977), 69 Ill.2d 44, 370 N.E.2d 797, cert. denied (1978), 435 U.S. 1013, 56 L.Ed.2d 395, 98 S.Ct. 1887, in which the Illinois Supreme Court found double jeopardy when the "same evidence" was used to convict a man of attempted murder as had been used in holding him in contempt of court for violating a protective order in a divorce proceeding by striking and shooting his wife. He was sentenced to six months in the county jail for contempt of court, and his conviction for attempted murder was reversed on the grounds of double jeopardy.
3 "[T]he State is not seeking to retry defendant for the same offense. His sentence of probation was revoked because it was conditioned on his not again engaging in criminal conduct within the probationary period. Upon proof that he did commit [another crime], he was subject to be sentenced for the original crime. The revocation of probation was not punishment for the subsequent criminal conduct which caused the revocation. (See People v. Morgan, 55 Ill. App.2d 157, 159-61 (1965).) The State does not now seek to try defendant again for the same offense * * *." (People v. Warne (1976), 39 Ill. App.3d 894, 898, 350 N.E.2d 836.) "A sentence imposed upon revocation of probation is not considered punishment for the offense which led to the revocation proceedings, but for the original crime. Thus there is no question of double jeopardy, or of being punished twice for the same offense." (People v. Howell (1977), 46 Ill. App.3d 300, 302, 360 N.E.2d 1212, 1213.) The imposition of the sentence of probation is conditional. Here the defendant violated one of the conditions of his probation. He committed another crime. Since he knowingly violated a condition ...