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                               Appellate Court                             Date: 2016.11.14
                                                                           11:47:55 -06'00'




                  People v. Frazier, 2016 IL App (1st) 140911



Appellate Court   THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption           TERRELL FRAZIER, Defendant-Appellant.



District & No.    First District, First Division
                  Docket No. 1-14-0911



Filed             August 15, 2016



Decision Under    Appeal from the Circuit Court of Cook County, No. 13-CR-14983; the
Review            Hon. James M. Obbish, Judge, presiding.



Judgment          Affirmed.



Counsel on        Michael J. Pelletier, Patricia Mysza, and Christopher L. Gehrke, all of
Appeal            State Appellate Defender’s Office, of Chicago, for appellant.

                  Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
                  Miles J. Keleher, and Michael J. Czopkiewicz, Assistant State’s
                  Attorneys, of counsel), for the People.



Panel             PRESIDING JUSTICE CUNNINGHAM delivered the judgment of
                  the court, with opinion.
                  Justices Connors and Harris concurred in the judgment and opinion.
                                              OPINION

¶1       Following a bench trial, defendant Terrell Frazier was convicted of possession of a stolen
     motor vehicle and sentenced, as a Class X offender, to 6½ years’ imprisonment. On appeal,
     defendant contests the sufficiency of the evidence supporting his conviction, arguing that the
     evidence failed to show that the motor scooter he possessed qualified as a motor vehicle, that it
     was stolen, and that he knew it was stolen. We affirm the judgment of the circuit court of Cook
     County.
¶2       At trial, Conrad Hard testified that he owned a 2011 Lingyu 13L150 motor scooter, which
     was started with a key. He bought the motor scooter from the “Tool Store” in Forestview and
     registered it with the State of Illinois. The registration form for the scooter, which was entered
     into evidence, indicated the vehicle identification number (VIN) of the scooter.
¶3       On July 22, 2013, Hard parked his motor scooter across the street from his apartment at the
     corner of North Kedzie Avenue and West Warren Boulevard in Chicago. The following day,
     he observed that the motor scooter was not where he had parked it and the lock to the motor
     scooter and its cover were inside his apartment building at the front door. Hard called the
     police and reported that his motor scooter had been stolen. Hard went to the police station on
     July 25 and was directed to the motor scooter. The motor scooter appeared different as it was
     broken and items were missing, including the ignition. He specifically stated that the space
     where the ignition was supposed to be was “just busted straight down the middle with a big
     hole where I used to put the key for the ignition.” Hard had the key from the stolen motor
     scooter with him at the police station and used it to open the storage compartment under the
     seat. Hard did not know defendant and did not give him, or anyone else, permission to take the
     motor scooter between the last time he saw it on July 22 and when he saw it again at the police
     station on July 25. Hard stated that the police returned the motor scooter to him, and he was
     able to drive it home by connecting the wires in such a way that he only needed to press the
     start button. At the time of trial, Hard still owned and drove the motor scooter.
¶4       Officer Sean Flynn testified that he saw defendant talking to another person while sitting
     on a motorized scooter that had its engine running and was parked on the sidewalk at
     approximately 1002 North Hamlin Avenue in Chicago on July 25, 2013. Flynn and his partner
     exited their squad car, noticed that the motorized scooter did not contain a license plate, and
     asked defendant for his driver’s license. Defendant did not have a license, and Flynn detained
     him. Flynn discovered that defendant’s license had been suspended, and when he ran the VIN
     on the motorized scooter, it came back as stolen. He subsequently learned that the motorized
     scooter was registered to Conrad Hard. Upon defendant’s detention, Flynn noticed that the
     cylinder for the ignition had been removed and no key was inside as there was no ignition to
     put it into. Flynn stated that he had seen hundreds of motorized scooters similar to the subject
     motor scooter and that scooters in good condition are operated with a key. He denied ever
     seeing a scooter that could be operated by a “push start.” No pictures were taken of the
     damaged scooter.
¶5       After the State rested, defendant made a motion for directed finding, arguing that the State
     failed to prove that he knew the motor scooter was stolen. In denying the motion, the trial court
     found that the type of damage the motor scooter sustained showed that defendant knew it was
     stolen.


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¶6         Defendant, who was on probation for possession of a controlled substance and had
       previous felony convictions, testified that he was having a conversation with his friend,
       Raymond Thompson, about Thompson’s motor scooter on July 25, 2013. Thompson started
       the motor scooter by holding the brake and pushing a button. Defendant got on top of the motor
       scooter and asked Thompson if he could take it on a test drive because he was considering
       buying it from him. Defendant believed that his driver’s license was valid and indicated that he
       knew he needed a driver’s license to operate the motor scooter. The police arrested defendant
       before he had the chance to drive the motor scooter. Thompson did not tell defendant that the
       motor scooter was stolen, nor did he see any evidence that it was stolen, particularly where he
       believed the scooter was a “push start” that did not require a key.
¶7         During cross-examination, defendant indicated that the motor scooter could be driven on
       the street and could reach approximately 40 miles per hour. He did not see the empty space in
       the motor scooter where a key would have gone and stated that he previously owned a “push
       start” motor scooter. Defendant denied ever going to school to become a mechanic and never
       told the police that he went to mechanic school or that he thought the motor scooter was a
       “push start” based on his auto mechanic training.
¶8         Following closing arguments, the trial court found defendant guilty of possession of a
       stolen motor vehicle. In doing so, the court found that defendant’s testimony lacked credibility
       where he did not inform the police that Thompson owned the motor scooter, and there was no
       real distinction between this case, where there was a hole where the ignition should have been,
       and a case where an individual is caught riding in a motor vehicle with a peeled steering
       column. The court noted that such a condition is a strong indicator that the vehicle was stolen,
       particularly considering defendant was experienced with motor scooters.
¶9         Defendant filed a motion for a new trial, arguing that the State never proved that he had any
       knowledge that the motor scooter was stolen. The trial court denied the motion, again finding
       that it was obvious to defendant that the motor scooter he was on was stolen where the entire
       ignition portion of the vehicle had been ripped apart. The court also rejected defendant’s
       argument that the motor scooter belonged to Thompson as defendant never informed the
       arresting officers of that alleged fact when it would have been appropriate to do so and could
       have avoided defendant’s subsequent charge.
¶ 10       On appeal, defendant contends that the State failed to provide sufficient evidence to prove
       him guilty of possession of a stolen vehicle. Specifically, defendant maintains that the
       evidence was insufficient to prove the three elements of the offense: the motor scooter
       qualified as a “motor vehicle,” the motor scooter defendant possessed was stolen, and
       defendant had knowledge that it was stolen.
¶ 11       In reviewing a sufficiency of the evidence claim, the relevant inquiry is whether, after
       viewing the evidence in a light most favorable to the State, any rational trier of fact could have
       found the defendant guilty of the essential elements of the crime beyond a reasonable doubt.
       People v. Davison, 233 Ill. 2d 30, 43 (2009). A reviewing court will not retry the defendant.
       People v. Cox, 195 Ill. 2d 378, 387 (2001). Instead, it is the responsibility of the trier of fact to
       assess witness credibility, weigh the evidence and draw reasonable inferences therefrom, and
       resolve any conflicts in the testimony. People v. Sutherland, 223 Ill. 2d 187, 242 (2006). A
       defendant’s criminal conviction will not be reversed on appeal unless the reviewing court finds
       that the evidence is so improbable or unsatisfactory that there remains a reasonable doubt of
       the defendant’s guilt. People v. Evans, 209 Ill. 2d 194, 209 (2004).

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¶ 12        To sustain a conviction for possession of a stolen motor vehicle the State must prove
       beyond a reasonable doubt that (1) the defendant was in possession of a motor vehicle, (2) the
       vehicle was stolen, and (3) the defendant knew it was stolen. 625 ILCS 5/4-103(a)(1) (West
       2012); Cox, 195 Ill. 2d 3d at 391.
¶ 13        Defendant first contends that the State failed to prove that the motor scooter was a “motor
       vehicle” within the meaning of the Illinois Vehicle Code (Code) (625 ILCS 5/1-100 et seq.
       (West 2012)). In particular, defendant asserts that the State failed to show that the motor
       scooter did not qualify as a low-speed electric or gas bicycle.
¶ 14        Illinois law defines, in relevant part, a motor vehicle as “[e]very vehicle which is
       self-propelled and every vehicle which is propelled by electric power obtained from overheard
       trolley wires, but not operated upon rails, except for vehicles moved solely by human power,
       motorized wheelchairs, low-speed electric bicycles, and low-speed gas bicycles.” 625 ILCS
       5/1-146 (West 2012). Low-speed electric and gas bicycles are defined as two- or
       three-wheeled vehicles with fully operable pedals and electric or gas motors of less than one
       horsepower, whose maximum speed on a paved level surface, when powered solely by such
       motors while ridden by an operator who weighs 170 pounds, is less than 20 miles per hour. 625
       ILCS 5/1-140.10, 1-140.15 (West 2012); People v. Grandadam, 2015 IL App (3d) 150111,
       ¶ 15.
¶ 15        Defendant maintains that a lack of testimony as to the motor scooter’s style of engine,
       horsepower, or existence of fully operable pedals shows that the State failed to prove he
       possessed a motor vehicle. We disagree. At all times both Conrad Hard and Officer Flynn, who
       had seen hundreds of motor scooters in the past, described the vehicle as a motor scooter, not
       as a bicycle. Although the term “motor scooter” is not defined by the current statute, this court
       has long held, albeit in insurance coverage cases, that “it [is] beyond argument that a motor
       scooter is a motor vehicle.” Hartford Accident & Indemnity Co. v. Holada, 127 Ill. App. 2d
       472, 478 (1970). We see no reason to deviate from that precedent under these facts. We believe
       that adopting this meaning of the phrase “motor scooter” merely ascribes the plain ordinary
       meaning of the words used by the witnesses and that it strains reason to suggest, as defendant
       argues, that the witnesses actually meant “low speed gas bicycle” when they said “motor
       scooter.” Moreover, the motor scooter was registered with the State of Illinois and contained a
       VIN, and defendant acknowledged that it could reach about 40 miles per hour. Therefore, the
       trial court could infer from the evidence presented that the motor scooter’s specifications met
       the requirements of a motor vehicle and not a low-speed electric- or gas-powered bicycle or
       any other statutory exception for that matter. See Sutherland, 223 Ill. 2d at 242 (stating that
       determining the credibility of the witnesses and drawing reasonable inferences from the
       evidence are responsibilities of the trier of fact).
¶ 16        Most importantly, it was the role of the trial court as trier of fact to resolve any ambiguity
       that might exist in the witnesses’ use of the phrase “motor scooter,” and on appeal we give
       deference to the trier of fact’s resolution of ambiguity. See People v. Fountain, 2011 IL App
       (1st) 083459-B, ¶ 25. It was defendant’s obligation to challenge any ambiguous testimony
       during trial or risk application of this rule on appeal. Id. ¶ 26.
¶ 17        Nevertheless, defendant argues that the State failed to sufficiently prove that the motor
       scooter was a motor vehicle because neither the motor scooter nor a photo of it was entered
       into evidence. However, the lack of physical evidence relating to the motor scooter does not
       show that the trial evidence was insufficient to convict him of the charged offense. Here, as this

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       court has previously held that a motor scooter qualifies as a motor vehicle, and there was
       sufficient testimonial evidence for the trier of fact to determine that the motor scooter at issue
       met the specifications of a motor vehicle, neither the motor scooter itself nor a picture of it was
       required to find defendant guilty of possession of a stolen motor vehicle. See People v. Herron,
       2012 IL App (1st) 090663, ¶ 23 (stating that where the trial court found a witness’s
       identification and testimony to be credible, the lack of physical evidence had no bearing on the
       defendant’s conviction).
¶ 18       Defendant next contends that the State’s evidence was insufficient to prove beyond a
       reasonable doubt that he was in possession of stolen property. When the State uses evidence of
       ownership to prove a vehicle was stolen, it must show that the defendant possessed the same
       vehicle owned by the complainant. People v. Smith, 226 Ill. App. 3d 433, 438 (1992).
¶ 19       Here, the evidence established that defendant possessed Hard’s stolen 2011 Lingyu
       13L150 motor scooter. The following colloquy occurred at trial between the assistant State’s
       Attorney and Hard:
                    “Q. And once you got to the police station were you directed to a motor scooter?
                    A. I was.
                    Q. When you—did you recognize the motor scooter you were directed to?
                    A. Yes.
                    Q. What did you recognize?
                    A. Well, the key. I tried—it was different because some items were missing. It was
               sort of broken.
                    Q. And well when you went to the police station and you saw a motor scooter, did
               you recognize that motor scooter as yours?
                    A. It didn’t look the same, no. I had to actually physically tried [sic] to put the key
               in it. It was different.”
       Hard further testified that, at the police station, he used the key from his stolen motor scooter to
       open a storage compartment on the scooter and that the police returned the motor scooter to
       him. The above testimony clearly shows that defendant was in possession of Hard’s motor
       scooter, which had been stolen.
¶ 20       In so finding, we reject defendant’s contention that the trial court admitted inadmissible
       hearsay testimony, and relied on it, to show Hard’s ownership of the motor scooter. Defendant
       specifically asserts that Officer Flynn’s testimony that the motor scooter “came back as stolen”
       and that he “subsequently f[ou]nd out” that it was registered to Hard was inadmissible hearsay.
       We initially note that defendant forfeited this issue by failing to object to it at trial. See People
       v. Enoch, 122 Ill. 2d 176, 186 (1988) (to preserve an issue for review, a defendant must both
       object at trial and include the alleged error in a written posttrial motion).
¶ 21       Forfeiture aside, the statement was not inadmissible hearsay as it was not being offered for
       the truth of the matter asserted. See People v. Ivory, 333 Ill. App. 3d 505, 514 (2002) (stating
       that hearsay is testimony of an out-of-court statement offered to establish the truth of the matter
       asserted). Police officers may testify to information they received during the course of an
       investigation to explain why they arrested a defendant or took other action, and such testimony
       is not hearsay as it is offered to show the steps an officer took, rather than for the truth of the
       matter asserted. People v. Rush, 401 Ill. App. 3d 1, 15 (2010). Here, Flynn’s testimony was not


                                                     -5-
       offered to prove that the motor scooter was stolen, but merely to explain why the officers
       arrested defendant and subsequently brought the motor scooter to the police station.
¶ 22       Nevertheless, if Flynn’s contested comments were inadmissible hearsay, there was
       sufficient evidence presented to prove that Conrad Hard had a superior interest in the motor
       scooter. Thus, we conclude that any alleged error was harmless. See People v. Sample, 326 Ill.
       App. 3d 914, 925 (2001) (stating that the “admission of hearsay is harmless if there is no
       ‘reasonable possibility the verdict would have been different had the hearsay been excluded’ ”
       (quoting People v. McCoy, 238 Ill. App. 3d 240, 249 (1992)).
¶ 23       Defendant finally argues that the State failed to provide sufficient evidence to prove that he
       actually knew the motor scooter was stolen. Here, “knowledge” means that defendant was
       “consciously aware” that the motor scooter was stolen, or that he was aware “of the substantial
       probability” that it was stolen. 720 ILCS 5/4-5(a) (West 2012). Knowledge is a question of fact
       for the trier of fact to decide. People v. Fernandez, 204 Ill. App. 3d 105, 108 (1990). Direct
       proof of a defendant’s knowledge that the property was stolen is unnecessary, and a
       defendant’s knowledge that the vehicle was stolen can be inferred from the surrounding facts
       and circumstances, which would lead a reasonable person to believe that the property was
       stolen. People v. Santana, 161 Ill. App. 3d 833, 838 (1987).
¶ 24       In this case, the evidence showed that defendant knew the motor scooter was stolen.
       Defendant testified that he was familiar with motor scooters as he had previously owned one,
       the subject motor scooter did not have a license plate, and the ignition had been removed. In
       describing the missing ignition, Hard testified that the motor scooter was “busted straight
       down the middle with a big hole” where the ignition should have been. Any reasonable person
       would have noticed a big hole in the middle of the motor scooter and would have concluded
       that a motor scooter with a busted out ignition and no license plate was stolen. We thus agree
       with the trial court’s finding that defendant’s testimony lacked credibility and that “when there
       is a big giant hole in the middle of the scooter,” it is a “pretty strong indicator that you are in
       possession of something that has been stolen from somebody else.”
¶ 25       We reject defendant’s assertion that the trial court placed “great weight” on his failure to
       implicate his alleged friend Thompson, who defendant maintained owned the motor scooter. In
       particular, the trial court stated that it found it odd that defendant did not tell Officer Flynn that
       Thompson owned the motor scooter and that defendant was merely considering buying it. In
       making this finding, defendant maintains that the trial court incorrectly held defendant’s
       postarrest silence against him. See People v. Quinonez, 2011 IL App (1st) 092333, ¶ 27
       (stating that “the Illinois evidentiary rule generally prohibits impeachment of a criminal
       defendant with his postarrest silence”). Despite defendant’s contentions to the contrary, there
       is no evidence in the record that the trial court placed “great weight” on this fact, or that it was
       even referencing defendant’s silence after he was arrested. Instead, the trial court was merely
       assessing the credibility of defendant’s in-court testimony and the events prior to his arrest.
¶ 26       For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.

¶ 27       Affirmed.




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