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03/30/94 PEOPLE STATE ILLINOIS v. JOHN NEWELL

March 30, 1994

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFFS-APPELLEES,
v.
JOHN NEWELL, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. Honorable Shelvin Singer, Judge Presiding.

As Corrected June 27, 1994. Petition for Leave to Appeal Denied December 6, 1994.

Cerda, J., with Rizzi, J., and Greiman, J., Concurring.

The opinion of the court was delivered by: Cerda

JUSTICE CERDA delivered the opinion of the court.

Following a jury trial, defendant, John Newell, was convicted of possession of a stolen motor vehicle (Ill. Rev. Stat. 1991, ch. 95 1/2, par. 4-103(a)(1) (now 625 ILCS 5/4-103(a)(1) (West 1992)) and sentenced as a Class X offender to 15 years' imprisonment. On appeal, defendant asserts that the State failed (1) to prove him guilty beyond a reasonable doubt because the evidence failed to prove that he knew the car he was driving was stolen; (2) to meet its burden under Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712, since it did not give a racially neutral explanation for its use of a preemptory challenge on a potential African-American juror; and (3) to allege in the indictment its intention to seek a Class X sentence. For the following reasons, we affirm.

Joseph Davis testified that he owned the 1985 Chevrolet Monte Carlo that defendant was driving on January 15, 1991. After work onJanuary 14, 1991, between 5 and 5:30 p.m., Davis parked the automobile in front of his house. He locked the car and took the keys into his house. At 6 a.m. the next morning, he noticed that his car was missing.

Later that day, Davis went to the police station where he identified his auto. There was no damage to the automobile, its windows, or its locks. Davis stated that he never saw the keys that the police officer showed him. He had the only set of keys to his automobile in his pocket.

Chicago police officer, Thomas Sailer, testified that he stopped defendant for speeding at 1 p.m. on January 15, 1991. Defendant was driving a 1985 Chevrolet Monte Carlo. Officer Sailer did not observe any punched door or trunk locks, broken windows, or a peeled steering column on the vehicle, but did see a set of keys in the ignition. When defendant could not produce a driver's license, Officer Sailer checked the automobile's license plate number. After he learned that the automobile had been reported stolen, he called for backup and placed defendant under arrest for possession of a stolen vehicle.

Chicago police officer Rayfield Frias testified that he drove the automobile to the police station. When the owner identified the automobile as his and said that the keys recovered from the automobile were not his, Officer Frias took the ignition key and tried it in the door of a randomly selected older Chevrolet model vehicle parked in the police station parking lot. He opened the car's door and turned on the ignition with the key.

Officer Frias then asked defendant where he got the car. According to Frias, defendant said that he had stolen it from his brother because his brother had previously stolen a car from him. Officer Frias admitted, however, that he did not remember defendant's exact words and his case report indicated that defendant used the word "took." Earlier, Officer Frias testified at the preliminary hearing that defendant said "he took the car [from his brother] because his brother had stolen his car. So he was going to steal his brother's car to pay him back."

Defendant testified that he believed that his brother, Larry Newell, owned the automobile because he saw Larry driving it at 9 p.m. on January 14, 1991. The next morning, while Larry was still asleep, defendant took the car keys from where Larry had left them the night before. Defendant got into the car between 5 and 5:30 a.m. and started it with the ignition key. He planned to drive to his girl friend's house on Chicago's north side and then take her shopping, but since it was so early, he went to his cousin's house until 1 p.m.

According to defendant, when Officer Sailer told him theautomobile was stolen, he replied that the officer was mistaken. At the police station, defendant told the police officers that he did not know why his brother would report the car stolen; his brother had taken his car a number of times; and it did not make sense that the one time he took his brother's car he would report it stolen. Defendant testified that he and his brother always borrowed each other's cars. Finally, defendant stated that he did not know the automobile was stolen.

After deliberations, the jury returned a verdict finding defendant guilty of possession of a stolen motor vehicle. At the sentencing hearing, the State requested that defendant be sentenced as a Class X offender under section 5-5-3(c)(8) of the Unified Code of Corrections (Ill. Rev. Stat. 1991, ch. 38, par. 1005-5-3(c)(8) now 730 ILCS 5/5-5-3(c)(8) (West 1992). After evidence of defendant's prior convictions was presented, he was sentenced to 15 years' imprisonment.

On appeal, defendant asserts that he was not proven guilty beyond a reasonable doubt because the State failed to establish knowledge, which is an element of the crime. Defendant argues that the statute's permissive inference should not be applied because he ...


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