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11/29/89 the People of the State of v. Primitivo Rivera

November 29, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

PRIMITIVO RIVERA, DEFENDANT-APPELLANT

SECTION 4-103 OF THE ILLINOIS VEHICLE CODE (ILL. RE

v.

STAT. 1985, CH. 95 1/2, PAR. 4-103) PROVIDES IN PART:



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION

548 N.E.2d 455, 191 Ill. App. 3d 977, 139 Ill. Dec. 70 1989.IL.1836

Appeal from the Circuit Court of Cook County; the Hon. John A. McElligott, Judge, presiding.

APPELLATE Judges:

JUSTICE WHITE delivered the opinion of the court. FREEMAN, P.J., and RIZZI, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WHITE

Following a jury trial, defendant, Primitivo Rivera, was convicted of possession of a stolen motor vehicle and sentenced to three years of imprisonment. He prosecutes a timely appeal to this court seeking reversal of his conviction and sentence. He argues on appeal that: (1) the trial court erred in allowing the State to amend the indictment; (2) he was not afforded a fair trial because the trial court commented on the credibility of the witnesses; (3) the trial court erred in refusing to instruct the jury regarding the definition of stolen property and the offense of criminal trespass to vehicle; (4) in closing argument, the assistant State's Attorney misstated the law regarding stolen property and shifted the burden of proof from the State to the defense; and (5) he was not proven guilty beyond a reasonable doubt. We reverse defendant's conviction and sentence.

The following testimony was adduced at trial.

Officer Victor Rivera of the Chicago police department was on patrol on the evening of November 19, 1985. As he was passing by a used car lot at 2050 North Western Avenue, he observed an individual trying to drive a blue Oldsmobile out of the lot. The car's headlights were not on. The car hit a cable stretched between two poles in the front of the lot. The cable did not break. Officer Rivera approached the driver of the car, whom he identified at trial as defendant, and asked him what he was doing in the car. Defendant replied that he had permission from the owner to move the car. Defendant also told Officer Rivera that the owner of the car was not at the lot. Officer Rivera turned the car's ignition off, took the keys out of the car and locked the car. Officer Rivera then placed defendant under arrest.

Officer Rivera contacted Vincent Burba, the owner of the used car lot, met Mr. Burba at the lot and inspected the blue Oldsmobile. The car was a two-door 1978 model with vehicle identification number 3B47H9M479049. On cross-examination, Officer Rivera testified that he did not lose sight of either defendant or the car from the time that he first observed defendant driving the car. The car could not be driven from the lot because of the cable.

Vincent Burba is a used car dealer. On November 19, 1985, he had approximately 20 cars for sale at his used car lot. Defendant came to the lot to discuss the purchase of a 1979 blue Oldsmobile Cutlass. Approximately 15 minutes later, defendant left the lot without buying the car. Mr. Burba closed the lot at 7 p.m. and secured the lot with a cable. In the early morning hours of November 20, 1985, Mr. Burba was contacted by the police department and told to go to the car lot. Mr. Burba met a police officer at the car lot and inspected the lot. Mr. Burba noticed that the blue Oldsmobile was rammed against the security cable and could not be driven any further. Mr. Burba testified that he did not give defendant permission to enter or drive the car.

On cross-examination, Mr. Burba denied that he had sold defendant a "lemon" a few weeks before the incident and that, in their conversation of November 19, 1985, defendant was trying to exchange the Oldsmobile for the "lemon." Mr. Burba testified that defendant was very pleased with the car that he had purchased and that defendant wanted to buy a second car. Mr. Burba also testified that the Oldsmobile did not leave the lot on November 19, 1985.

Opinion, Defendant was convicted of possession of a stolen motor vehicle. He maintains, however, that he was not proven guilty beyond a reasonable doubt. We agree.

"(a) It is a violation of this Chapter for:

(1) A person not entitled to the possession of a vehicle or part of a vehicle to receive, possess, conceal, sell, dispose, or transfer it, knowing it ...


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