dissenting:
I must respectfully dissent. The State has a heavy burden in a criminal case. It must prove each element of the offense beyond a reasonable doubt by competent evidence. (In re Winship (1970), 397 U.S. 358, 364, 25 L. Ed. 2d 368, 375, 90 S. Ct. 1068, 1073.) I have searched the record for facts which support the allegation that defendant possessed a stolen motor vehicle. I have yet to find any such facts. Evidence regarding who owned, possessed or had control over the truck, at the time it was allegedly stolen, is likewise lacking.
To warrant a conviction based on a defendant’s recent, exclusive and unexplained possession of a stolen vehicle, the evidence must be of a conclusive nature (People v. Kilgore (1975), 33 Ill. App. 3d 557, 338 N.E.2d 124), and include the presentation of evidence which convincingly establishes ownership of the vehicle (People v. Hope (1979), 69 Ill. App. 3d 375, 387 N.E.2d 795) and that the vehicle was stolen.
In the present case, the purported owner of the tractor, as alleged in the indictment, Howard Duke, never testified to a theft. In fact, he lacked knowledge that a theft had occurred. Mr. Duke testified that, on the date the defendant was allegedly in possession of the truck, it was leased to another entity, Legion, and therefore, neither he nor his company had any right or control over the truck.
Although Mr. Micco, Legion’s representative and a surprise witness, did in fact testify regarding a tractor which he understood had been stolen, including a vehicle identification number, he stated that he had no personal knowledge of a theft of the subject truck. Mr. Micco testified that while a lease had previously existed, on the date of the alleged theft, the lease had been terminated. Further, the record is unclear as to who reported the truck as being stolen.
In addition, Micco’s testimony that defendant was not an authorized driver for Legion was based upon, not personal knowledge, but Micco’s recollection of what was contained in the computerized records of the company. Such testimony was inadmissible. The proper method of proof would have been to introduce Legion’s business records in evidence, which the State failed to do. Instead, the inadmissible testimony that defendant was not entitled to possession of the truck was offered to prove an element of the offense charged. See People v. Clark (1982), 108 Ill. App. 3d 1071, 1081, 440 N.E.2d 387.
Officer Starr’s testimony that he determined the truck to be stolen by checking the State of Illinois computer records was predicated on hearsay, and therefore, its admission likewise was error. The State, in response, argues that defendant has waived this issue on appeal by failing to object at trial and by failing to raise it in his motion for a new trial, citing People v. Davis (1984), 130 Ill. App. 3d 41, 473 N.E.2d 387.
Because the alleged error goes to an element of the offense and detracts from the State’s ability to prove its case beyond a reasonable doubt, I would invoke the plain error doctrine in that this error affects the substantial rights of defendant. “Plain error *** affecting substantial rights” may be considered within the discretion of the reviewing court as a means of alleviating the strict application of the waiver rule. People v. Pickett (1973), 54 Ill. 2d 280, 282, 296 N.E.2d 856.
I have reviewed the facts and circumstances of this case which precipitated defendant’s conviction under the Illinois Vehicle Code. A person is in violation of the Code if he receives, possesses, conceals, sells or disposes of a motor vehicle, which he is not entitled to the possession of, and knows the vehicle to have been stolen. (Ill. Rev. Stat. 1985, ch. 951/2, par. 4 — 103(a).) Thus, the State must prove: (1) that the vehicle was stolen, and (2) that defendant’s possession of it was unauthorized. People v. Clark (1982), 108 Ill. App. 3d 1071, 440 N.E.2d 387.
The majority in response to defendant’s contention that the State failed to prove the truck was stolen cites People v. Williams (1986), 143 Ill. App. 3d 658, 493 N.E.2d 362, for the proposition that identification of a stolen vehicle by its vehicle identification number was sufficient to sustain a conviction for possession of a stolen motor vehicle. While I do not quarrel with that holding, it is irrelevant to the issue at hand, and the factual matrix is distinguishable from the case at bar.
In People v. Williams, the victim observed the theft of her car, and she identified the defendant as the man who stole her car. While she testified incorrectly regarding one digit of a 13-digit vehicle identification number, it was a minor discrepancy when coupled with the overwhelming evidence of defendant’s guilt, i.e., defendant was found in possession of the victim’s automobile, checkbook, savings passbook, repair bill and credit cards, and eyewitness testimony of the witnesses.
Conversely, in the case at bar, the State’s witnesses never testified to a theft, neither the “owner” nor the lessee had any personal knowledge of a theft. In fact, Mr. Duke testified that he identified some truck parts on March 13, 1985; but, when he took these parts to the repair shop, they did not match the “Peterbilt” truck, which he had also identified as the truck that “possibly could have been issued to Legion.” The evidence fails to convincingly establish ownership of the truck (People v. Hope (1979), 69 Ill. App. 3d 375, 387 N.E.2d 795), or establish that the truck was stolen, or that the subject truck was the same one reported stolen. See People v. Williams (1962), 24 Ill. 2d 214, 181 N.E.2d 353.
Thus, the State’s failure to prove that the truck was stolen, an essential element of the offense, when coupled with its attempts to offer a conclusion based on hearsay evidence, mandates a reversal.
For the foregoing reasons, I would reverse defendant’s conviction.