Appeal from the Circuit Court of Jefferson County; the Hon.
David Underwood, Judge, presiding.
JUSTICE HARRISON DELIVERED THE OPINION OF THE COURT:
Defendant, Shelton L. Oliver, was convicted after a jury trial in the circuit court of Jefferson County of felony theft. He was sentenced to four years' imprisonment. On appeal he contends (1) the court erred in failing to give the jury the second paragraph of Illinois Pattern Jury Instruction (IPI), Criminal, No. 3.02 (2d ed. 1981), regarding circumstantial evidence, and (2) that he should receive credit toward the $20 fine he was ordered to pay to the Violent Crime Victims Assistance Fund for days he spent in jail prior to trial. We reverse and remand.
The owner of a car dealership in Mount Vernon, Obbie Atkinson, testified that defendant and another man were on his lot on July 19, 1984, moving from one car to the next without spending much time examining any particular vehicle. Atkinson talked briefly with the men, then they left. The next day, July 20, Atkinson discovered a 1980 Chevrolet pickup truck was missing. He stated it was worth $5,000.
Michael Foster pleaded guilty to stealing the truck. He testified at defendant's trial that defendant had nothing to do with the theft. Foster stated that he and defendant had been on Atkinson's lot either on July 18 or July 19. Foster testified that at that time he had no intention of stealing a vehicle. However, he returned to the dealership around midnight on the night of July 19, and began working to remove the ignition of the pickup truck. Foster removed it, took it home and modified it so it would start the truck without a key, then went back to the car lot and put the ignition back into the truck. He then stole the vehicle.
Around 2 or 3 p.m. on July 21, Foster left Mount Vernon driving the pickup and headed north. He said there was no one with him when he left town, but that he saw defendant hitchhiking about two miles north of Mount Vernon. He knew defendant because he worked with him on the night shift at Martin's IGA. He told defendant the truck had been borrowed from a friend. Foster further testified they were stopped in Kankakee around 2 a.m. on July 22 for driving without taillights. Foster and defendant were arrested when police learned the truck was stolen.
Trooper Frank Arceneaux of the Illinois State Police was the officer who stopped the truck and discovered it had been stolen. He testified the ignition was on the front seat of the truck between the two men instead of in the dashboard where it belonged. He also found a screwdriver on the seat. Arceneaux stated that after the arrest, Foster said defendant had not been involved in the theft of the truck. Foster had told him he had picked up defendant at defendant's house because they planned to travel to California then on to Hawaii in the hope of getting new jobs. Arceneaux said that defendant had told him that he was hitchhiking when Foster picked him up. Defendant also told the trooper he was not involved in the theft of the truck. Trooper Arceneaux further testified that defendant had said he worked the night shift at an IGA store making donuts, but stated he did not know Foster. Trooper Robert Cluver confirmed much of the testimony of Trooper Arceneaux.
Rosemary Catz, the manager of Martin's Foods, testified that Foster and defendant knew each other because they worked together on the night shift three nights a week. On July 21, Foster told Catz he and defendant were quitting work. Catz did not talk directly to defendant about his plans to quit.
Defendant testified on his own behalf, and stated he had gone with Foster to Atkinson's car dealership to look at cars for Foster. But defendant denied any involvement in or knowledge of the theft. He stated he was hitchhiking to Chicago when Foster stopped to give him a ride. He admitted he knew Foster because he worked with him. Defendant explained that he had not told the troopers he did not know Foster, but rather that he did not know him well. He admitted seeing the ignition for the truck was broken, but testified that Foster told him the person from who he had borrowed the truck had a new one ordered. He also said he knew what Foster's own car looked like. Defendant further testified that Foster wanted defendant to go with him to Hawaii to get new jobs.
Defendant also called Foster as a witness, with Foster stating that the ignition switch was still in the dashboard when the police stopped him and was not on the seat.
Also testifying for defendant was his mother, Sandra Oliver. She said defendant had been home all day on July 19 and 20 but left home on July 21 to go to Chicago to visit his uncle. She said her son left on foot.
• 1 Defendant first claims the court erred when it did not give the jury the second paragraph of IPI Criminal 2d No. 3.02. The court did give the jury the first paragraph of this instruction, which states:
"Circumstantial evidence is the proof of facts or circumstances which give rise to a reasonable inference of other facts which tend to show the guilt or innocence of a defendant. Circumstantial evidence should be considered by you together with all the other evidence in the case in arriving at your verdict."
The court refused defendant's request to give the jury the second paragraph of IPI Criminal 2d No. 3.02, which states:
"You should not find the defendant guilty unless the facts or circumstances proved exclude every ...