APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT
520 N.E.2d 1002, 166 Ill. App. 3d 782, 117 Ill. Dec. 651 1988.IL.242
Appeal from the Circuit Court of Fayette County; the Hon. William R. Todd, Judge, presiding.
PRESIDING JUSTICE HARRISON delivered the opinion of the court. WELCH and LEWIS, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HARRISON
Following a bench trial in the circuit court of Fayette County, defendants, Darold and Carol Yarbrough, were each convicted on nine counts of violating section 4-105(a)(5) of the Illinois Vehicle Code (Ill. Rev. Stat., 1984 Supp., ch. 95 1/2, par. 4-105(a)(5)). Darold Yarbrough was sentenced to four years' imprisonment on each count, the sentences to run concurrently, and was ordered to pay a fine of $9,000 and to make restitution. Carol Yarbrough, Darold's wife, received four years' probation conditioned on, inter alia, her payment of a $9,000 fine and court costs, making restitution, and performing public service work. Both defendants now appeal, and three issues are presented for our review: (1) whether the indictments by which defendants were charged were defective; (2) whether the evidence was sufficient to prove defendants guilty beyond a reasonable doubt; and (3) whether the circuit court abused its discretion in sentencing Darold to a term of imprisonment. For the reasons which follow, we reverse.
Darold Yarbrough owned and operated a used car lot in Vandalia, Illinois. Carol worked for him in the office and handled all paperwork generated by the business, including the various title, tax, and other documents required by the State. The basis for their indictment and conviction in this case was false mileage information which they furnished to the Secretary of State regarding nine cars and trucks sold between January and May of 1985. All nine of those vehicles were owned by Darold. Most he sold directly from his lot. A few were sold for him by another dealer, Gary Dial, on consignment.
Eight of the nine vehicles were originally purchased by Darold from Tri Ford, Inc., in Highland. The ninth he bought from Clinton County Motors in Breeze. None was newer than five years old. All had been driven substantial distances. Their mileage ranged from a low of 71,000 to a high of approximately 124,000. The evidence, when viewed in the light most favorable to the prosecution, established that after Darold bought these nine vehicles, he arranged to have their odometers rolled back. In this way, the vehicles were made to appear to have been driven far fewer miles than they actually were. In one instance, for example, the rollback eliminated more than 60,000 elapsed miles. That the odometers were being rolled back was known to Carol.
The odometer rollbacks are not, themselves, the subject of this case. What defendants are being prosecuted for is, instead, what occurred afterwards. When one of the vehicles was sold, its title would be transferred to the buyer by execution of the assignment of title, which appeared on the reverse side of the title certificate. (See Ill. Rev. Stat., 1984 Supp., ch. 95 1/2, par. 3-113.) Normally the assignment was filled out by Carol. She would then sign Darold's name to it, as she was authorized to do under a power of attorney. Once this had been done, the executed, reassigned title, along with the seller's application for a new certificate of title, would be sent to the Secretary of State. See Ill. Rev. Stat., 1984 Supp., ch. 95 1/2, par. 3-113.
Five of the nine vehicles involved here had titles which were issued after section 3-112.1 of the Illinois Vehicle Code (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 3-112.1) went into effect. As required by that statute, those titles included "odometer certifications" which had to be filled out and signed by Darold when the title was transferred to the buyer. The certifications read:
"I certify to the best of my knowledge that the odometer reading is and reflects the actual mileage of the vehicle unless one of the following statements is checked.
1. The amount of mileage stated is in excess of 99,999 miles or
2. The odometer reading is not the actual mileage."
In executing the transfer of those five titles which included the certifications, Darold was required to state the odometer reading at the time of transfer, the date of the transfer, and his name and address in spaces provided for this purpose on the title form next to the odometer certifications. (See Ill. Rev. Stat. 1985, ch. 95 1/2, par. 3-112.1(b).) This was done in each case. On one of the titles, the certification indicated that the odometer reading did not show the actual miles. The remaining four did not. ...