APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT
520 N.E.2d 1116, 166 Ill. App. 3d 825, 117 Ill. Dec. 765 1988.IL.282
Appeal from the Circuit Court of Fayette County; the Hon. William R. Todd, Judge, presiding.
JUSTICE WELCH delivered the opinion of the court. HARRISON, P.J., and LEWIS, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WELCH
Defendant, Darold Yarbrough, was convicted on May 23, 1986, in the circuit court of Fayette County of theft by deception and criminal damage to property. He was sentenced to a one-year term of probation, as a condition of which he was to serve 90 days' imprisonment in the county jail. Defendant was also ordered to pay a $1,000 fine for each offense, and court costs. Defendant appeals his convictions, arguing (1) that certain out-of-court statements of a prosecution witness were improperly admitted into evidence against him; (2) that he was not proved guilty beyond a reasonable doubt; and (3) that the prosecutor's closing argument was improper and prejudicial.
Defendant was charged with aiding and abetting Paul Kirkman in perpetrating a fraud against Aetna Insurance Company. Specifically, defendant and Paul Kirkman were indicted for theft in that they knowingly obtained control over $1,880.41 belonging to Aetna Insurance Company by causing a 1982 Buick Regal automobile to be towed, damaged and falsely reported stolen. They were also indicted for criminal damage to property in that they knowingly damaged a 1982 Buick Regal automobile with intent to defraud an insurer, Aetna Insurance Company. Paul Kirkman entered a negotiated guilty plea to both charges and agreed to testify truthfully at defendant's trial.
The following evidence was adduced at trial. At approximately 8 a.m. on December 11, 1984, Mt. Vernon city police officer Albert Boyd received a call from Paul Kirkman. Officer Boyd met Kirkman at the Best Inns Motel in Mt. Vernon, where Kirkman reported that his white 1982 Buick Regal had been stolen. Kirkman provided Officer Boyd with the license plate number. Officer Boyd entered the information in the police computer, indicating that the described vehicle had been reported stolen.
State Trooper Jack Archer testified that while on duty on December 12, 1984, at approximately 2:18 a.m., he discovered Kirkman's car on the north side of Interstate 57 near the Kinmundy exit. The passenger side window had been broken in, the ignition switch had been broken off and the right rear tire was flat. The vehicle was towed to a nearby garage.
Paul Kirkman testified that he owns a 1982 Buick automobile which he had reported stolen to the Mt. Vernon city police. Approximately one week before it was reported stolen, the vehicle had been towed by an employee of defendant from Kirkman's house to defendant's used car lot. This was done pursuant to Kirkman's request because the engine in the car was "locked up." The car sat on defendant's car lot for four or five days. During that time, Kirkman and defendant had a conversation at defendant's office in which Kirkman asked defendant to have the vehicle towed to Interstate 57 and left there so that Kirkman could report it stolen to his insurer. Kirkman hoped that the insurer would then pay the damages apparently caused when the car was stolen, i.e., pay for a new engine. Defendant indicated that he would be glad to help Kirkman.
Kirkman told defendant that he would spend the night in a motel in Mt. Vernon and report the vehicle stolen the next morning. The last time Kirkman saw the vehicle before he reported it stolen there was no damage to it other than the locked up engine. Kirkman gave no one permission to damage it further. Kirkman further testified that the odometer had been rolled back from 65,000 miles to 35,000 miles without his permission or knowledge. Kirkman had not agreed to pay defendant for his help.
Charles Pryor testified that he was employed by defendant in December 1984, as a mechanic and tow truck driver. In December 1984, Pryor was told by defendant to pick up Kirkman's car and tow it to defendant's used car lot. After towing the car to the lot, and at defendant's direction, Pryor rolled back the odometer from "60 some thousand miles" to "30 some" thousand miles. Pryor also inspected the engine of the car and found it to be "locked." The next day, Kirkman came out to the car lot, and he and Pryor put a new license plate sticker on the car. Pryor testified that he had known Kirkman for 20 to 25 years.
The car sat on the lot for four or five days. On a Friday evening, Pryor observed the car being towed behind defendant's tow truck on Route 51 to the Kinmundy blacktop. The next morning, Pryor talked to Roger Tucker, another employee of defendant, about the car. Pryor became angry when he learned what had been done with the car. He confronted defendant and Kirkman in defendant's office. Defendant told Pryor not to worry about it, that it was "[just] a little insurance deal." Pryor then went back to work. Shortly thereafter, defendant came out to where Pryor was working and stated that it wasn't worth it. Pryor asked defendant what he was going to get, and defendant responded $200.
The first day of trial, the State called Roger Tucker to the witness stand. Tucker testified that he worked part time for defendant. He denied that he had ever lived in a house trailer owned by defendant, or driven a car owned by defendant. He refused to answer any other questions. His refusal was not based on his privilege against self-incrimination. He was offered appointed counsel, advised of possible sanctions, and still ...