dissenting:
I respectfully dissent. I see no need to decide whether there was any direct evidence of defendant’s guilt; I conclude that the trial court’s failure to give the second paragraph of IPI Criminal 2d No. 3.02 was harmless. See People v. Minor (1983), 115 Ill. App. 3d 1046, 1051, 451 N.E.2d 1011, 1014.
As the majority nótes, the question is whether we can say that had the instruction been given the verdict would not have been different. (People v. Crow (1985), 108 Ill. 2d 520, 536, 485 N.E.2d 381, 388-89.) Defendant admitted knowing Foster and working with him; he admitted accompanying Foster to the car dealership; he admitted knowledge of the broken ignition in the truck; and he admitted that he and Foster discussed going to Hawaii together. Catz’ testimony that Foster told Catz he and defendant were quitting their jobs is uncontradicted. The truck was discovered missing July 20. Defendant and Foster were arrested in the truck early on July 22, 200 miles north of the car dealership where it was stolen. Thus if defendant’s denials of guilt are to be believed, defendant was the victim of a monstrous coincidence, a hitchhiker’s bad luck.
If a defendant’s testimony is so unreasonable or so remarkable as to seem incredible, the jury may reject it. (People v. Malmenato (1958), 14 Ill. 2d 52, 59, 150 N.E.2d 806, 810.) In light of the uncontradicted evidence, defendant’s story was so unbelievable that he had no right to expect a jury to believe it, regardless of the instructions concerning circumstantial evidence. The evidence convicted defendant, not the trial court’s error, if any. I would affirm defendant’s conviction and give him full credit against his fine for time served, as he requests it and the State properly concedes it.