Appeal from the Circuit Court of Du Page County; the Hon. John
J. Nelligan, Judge, presiding.
PRESIDING JUSTICE NASH DELIVERED THE OPINION OF THE COURT:
After a bench trial defendant, John Sergey, was convicted of possessing a motor vehicle knowing it to have been stolen or converted (Ill. Rev. Stat. 1983, ch. 95 1/2, par. 4-103(a)(1)) and driving under the influence of alcohol (Ill. Rev. Stat. 1983, ch. 95 1/2, par. 11-501(a)(2)). He was sentenced to 18 months' probation conditioned on serving six months in jail for the first offense and one year of probation conditioned upon serving three months in jail for the latter offense, the sentence to be concurrent.
On appeal defendant contends: (1) the State failed to prove him guilty of possessing a motor vehicle knowing it to have been stolen or converted; (2) he was denied a fair trial because the court barred him from testifying about his intent when he possessed the car; and (3) the driving under the influence of alcohol charge was void for its failure to apprise defendant with particularity of the specific offense with which he was charged.
On September 18, 1983, defendant finished work at 6 p.m. at Carol Stream Amusements, where he had been working and residing for two weeks. He then began drinking beer with 10 other employees until approximately 1 a.m., when he decided to hitchhike to a tavern to buy more beer and then return. At that point, Sergey had consumed more than a 12-pack of beer.
Carol Stream Amusements, which is owned by Tim Magrid, sits on 18 acres of farmland and is used to store cars, trucks and carnival equipment. On September 18, there were 30 to 50 cars scattered about the premises; most of the vehicles were owned by Tim Magrid and most had keys in the ignition. The Mint Car Company, a car lot owned by Richard Schoenneman, is located "on the same property" as Carol Stream Amusements. Some of the cars owned by Schoenneman were parked among vehicles owned by Magrid.
Defendant testified he saw a 1977 Oldsmobile Cutlass with its keys in the ignition when he left to get more beer. Assuming it belonged to Magrid and believing Magrid would not mind if defendant borrowed it, Sergey drove the vehicle to a tavern where he stayed for 20 minutes and had a couple of beers before leaving with two 12-packs of beer. He then headed back to Carol Stream Amusements, but was stopped by police and arrested.
Officer Patrick Dempsey testified he observed the defendant speeding and weaving from one traffic lane to another at 2:50 a.m. Dempsey activated his emergency lights, but defendant ignored the police car until he was "edged over" by Dempsey and a police officer who had joined the pursuit. The officers testified that defendant stumbled, swayed, twice fell back against the Oldsmobile and smelled of alcohol. Defendant was arrested for "driving under the influence of alcohol" under "11-501(a)" and taken to the Roselle police station. At the station, defendant refused to take a breathalyzer test. All of the officers testified defendant could have reached Carol Stream on the route he was driving.
After the State had called two witnesses, but prior to the end of its case, the prosecution successfully moved over defense objection to amend the traffic ticket by adding subsection "(2)" to the statutory citation of "11-501(a)." The court found the amendment did not surprise or prejudice defendant and that it cured what was only a formal defect.
At trial, defendant was not allowed to testify as to whether he knew the car was stolen or converted. However, he was allowed to testify that he had believed the Oldsmobile belonged to his employer; that he decided to borrow it; that he intended to return the vehicle after he purchased beer; that he did not have the intent to permanently deprive Richard Schoenneman or anyone else of the use and benefit of the car; that he believed his employer would not mind him borrowing the car for a short time because they "got along pretty good."
Defendant's claim that Magrid would have allowed him to use a vehicle was unrebutted. Also, it was stipulated that Richard Schoenneman would have testified that he was the owner of the vehicle, that it was worth more than $300 and that he later recovered the vehicle.
The court found defendant not guilty of theft because the State failed to prove intent to deprive the owner permanently of the car, for the evidence showed defendant was returning to Carol Stream Amusements with more beer when the police arrested him. Defendant was found guilty of driving under the influence of alcohol and of an offense charged which was premised upon his unauthorized possession of a car which he knowingly converted to his own use. Ill. Rev. Stat. 1983, ch. 95 1/2, par. 4-103(a)(1).
• 1 Defendant's first claim of error is based on the court's finding that defendant knowingly "converted" the car when he used it to drive to a tavern to purchase beer. Section 4-103 of the Illinois Vehicle Code states in relevant part:
"Offenses relating to motor vehicles and other vehicles Felonies. (a) It is a violation of this Chapter for:
(1) A person not entitled to the possession of a vehicle or part to receive, possess, conceal, sell or dispose of it, knowing it to have been stolen or converted * * *." Ill. ...