People v. Davenport

530 N.E.2d 1118, 176 Ill. App. 3d 142, 125 Ill. Dec. 709, 1988 Ill. App. LEXIS 1570
CourtAppellate Court of Illinois
DecidedNovember 7, 1988
Docket87—1063, 87—1064 cons.
StatusPublished
Cited by12 cases

This text of 530 N.E.2d 1118 (People v. Davenport) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Davenport, 530 N.E.2d 1118, 176 Ill. App. 3d 142, 125 Ill. Dec. 709, 1988 Ill. App. LEXIS 1570 (Ill. Ct. App. 1988).

Opinion

JUSTICE O’CONNOR

delivered the opinion of the court:

This is a consolidated appeal of convictions for possession of a stolen motor vehicle.

On November 29, 1986, Darryl Lane parked his gray 1982 Ford Escort, with the personalized license “Atom Ant,” across the street from the building where he was employed. When he left work later that evening, his car was gone. On December 2, 1986, the Chicago police notified Lane that his car had been found. Lane testified at trial that the front left and rear right fenders had been damaged, customized stereo equipment was gone and the car’s spare tire, lug wrench and lock were missing.

Police officer Michael McMeel testified that on December 2, 1986, at 11:15 p.m., he and his partner were on patrol at 1860 South Hamlin when they saw defendants Bob Brown and Felix Davenport taking the lug nuts off of a vehicle in a vacant lot. As McMeel and his partner got out of their car, defendants dropped a four-way lug wrench to the ground and walked toward the officers. Lane later identified the lug wrench as the wrench that had been in his car. The officers ran a license number check on the car. After learning that it had been stolen, they placed defendants under arrest.

Defendant Brown testified that he and codefendant Felix Davenport were in the vicinity because they had just parked a car at the entrance to a nearby alley. He testified that they were crossing the street to go to a friend’s house when the police arrested and handcuffed them in the middle of the street. Brown denied being in or near the Ford Escort and denied that he and Davenport were removing lug nuts from a tire.

Both defendants were found guilty of possession of a stolen motor vehicle. Defendant Davenport was sentenced to 24 months’ probation, and defendant Brown was sentenced to six years in the Illinois Department of Corrections.

Defendants both contend on appeal that the wholly circumstantial evidence failed to prove beyond a reasonable doubt that they were in possession of a stolen motor vehicle. They contend that Officer McMeel testified inaccurately in that he stated that the car was recovered on November 29, when in fact it was recovered on December 2. Defendants also suggest that Officer McMeel’s testimony was impeached by omission, citing People v. Gonzalez (1983), 120 Ill. App. 3d 1029, 1038, 458 N.E.2d 1047, aff’d (1984), 104 Ill. 2d 332, in that although McMeel testified that the steering column of the car had been “peeled,” i.e., tampered with so that the car could be started without a key, the arrest report did not so state and the complainant made no mention of that fact in testifying regarding the damage done to the vehicle.

The statute under which defendants were convicted provides in relevant part as follows:

“Sec. 4 — 103. 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 of a vehicle to receive, possess, conceal, sell, dispose, or transfer it, knowing it to have been stolen or converted; additionally the General Assembly finds that the acquisition and disposition of vehicles and their essential parts are strictly controlled by law and that such acquisition and disposition are reflected by documents of title, uniform invoices, and bills of sale. It may be inferred, therefore that a person exercising exclusive unexplained possession over a stolen or converted vehicle or an essential part of a stolen or converted vehicle has knowledge that such vehicle or essential part is stolen or converted, regardless of whether the date on which such vehicle or essential part was stolen is recent or remote.” Ill. Rev. Stat. 1985, ch. 95 1/2, par. 4 — 103(a)(1).

The complainant here testified that his vehicle had been removed from the place where he parked it and that he had given no one permission to use it. These facts support the inference that his car had been stolen. The officer who testified stated that he witnessed the defendants in the process of removing lug nuts from the vehicle, that they were using the same four-way lug wrench that complainant identified as one he had kept locked in his trunk, and that a distinctive wheel lock, also identified by complainant, was found on defendant Davenport’s person.

The statute provides that if a person is not entitled to the possession of a vehicle or its parts, it may be inferred that the person exercising “exclusive unexplained possession” over the vehicle or its parts knows that the vehicle was stolen. The evidence here was clear that defendants were not entitled to possession of Lane’s vehicle. Their conduct in attempting to remove the tires from the vehicle "with tools that had been taken from the vehicle clearly constitutes possession under the statute. (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 4 — 103(a)(1).) Thus there is no merit to defendants’ contentions that the evidence was wholly circumstantial and that they were not proved guilty beyond a reasonable doubt.

With respect to defendants’ contention that the testimony of Officer McMeel and the complainant should not have been credited because there were certain inaccuracies and omissions, the law is clear that the credibility of a witness is a question for the trier of fact and a determination as to credibility is entitled to great weight. People v. Bullock (1976), 40 Ill. App. 3d 672, 674, 353 N.E.2d 35.

That the complainant failed to remember certain details regarding damage to his vehicle does not negate the fact that defendants were found in actual possession of complainant’s stolen vehicle. Similarly, Officer McMeel’s errors as to the date of the arrest and the position of the defendants when he observed them removing the lug nuts are minor ones and in no way constitute impeachment of his entire testimony. When a case is tried without a jury, as here, it is the duty of the trial judge to determine the credibility of the witnesses and the weight to be given their testimony. (People v. Cates (1982), 111 Ill. App. 3d 681, 688, 444 N.E.2d 543, appeal denied (1983), 93 Ill. 2d 544.) Where the evidence is merely conflicting, a reviewing court will not substitute its judgment for that of the trier of fact, who heard the evidence. People v. Woods (1980), 81 Ill. 2d 537, 542, 410 N.E.2d 866.

Defendant Brown raises two objections with respect to his sentence. The first is that the trial court erred in failing to advise him of his right to elect treatment under section 22 of the Alcoholism and Substance Abuse Act (the Act) (Ill. Rev. Stat. 1985, ch. 111 1/2, par. 6322).

In relevant part, the Act provides:

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Cite This Page — Counsel Stack

Bluebook (online)
530 N.E.2d 1118, 176 Ill. App. 3d 142, 125 Ill. Dec. 709, 1988 Ill. App. LEXIS 1570, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-davenport-illappct-1988.