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05/17/89 the People of the State of v. Darold Yarbrough Et Al.

May 17, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLANT

v.

DAROLD YARBROUGH ET AL., APPELLEES

IN VIOLATION OF PARAGRAPH 4-105 A5 [ SIC ], CH. 95 1/2, ILL. RE

v.

STAT." (BLANKS WERE FILLED WITH PARTICULARS OF EACH COUNT.)



SUPREME COURT OF ILLINOIS

539 N.E.2d 1228, 128 Ill. 2d 460, 132 Ill. Dec. 422 1989.IL.743

Appeal from the Appellate Court for the Fifth District; heard in that court on appeal from the Circuit Court of Fayette County, the Hon. William R. Todd, Judge, presiding.

APPELLATE Judges:

JUSTICE STAMOS delivered the opinion of the court. JUSTICE CALVO took no part in the consideration of decision of this case.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE STAMOS

Following a bench trial in the circuit court of Fayette County, defendants, Darold and Carol Yarbrough, were each convicted of nine counts of automobile title fraud in violation of section 4-105(a)(5) of the Illinois Vehicle Code (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 4-105(a)(5)). The trial court sentenced defendant Darold Yarbrough to four years' imprisonment on each count, the sentences to run concurrently, and fined him $1,000 on each count. The trial court sentenced defendant Carol Yarbrough to four years' probation, conditioned upon payment of a $1,000 fine on each count and performing 10 hours of community service per week. The appellate court reversed defendants' convictions (166 Ill. App. 3d 782), and we allowed the State's petition for leave to appeal (107 Ill. 2d R. 315(a)).

The issue before this court is whether defendants' conduct of filling out mileage figures, later shown to be false, on certificates of title which were sent to the Secretary of State violated section 4 -- 105(a)(5).

Both defendants were indicted on nine counts of violating section 4-105(a)(5). Each count of the indictment concerned a different used vehicle sold by Darold to a purchaser, and alleged that both defendants committed the offense of "FALSE OR FRAUDULENT APPLICATION FOR CERTIFICATE OF TITLE, in that said defendants in making an application for an automobile certificate of title under the provisions of the Illinois Vehicle Code on behalf of , knowingly made a material false statement, in that they stated on title # , the mileage of a 197 , VIN # to be [miles] when they knew the said mileage to be miles

Section 4 -- 105(a)(5) states that it is a violation of the Code for:

"a person to . . . make a material false statement, or fail to disclose a security interest, or conceal any other material fact on any application for any manufacturers statement of origin, certificate of title, . . . or commit a fraud in connection with any application under this Act." Ill. Rev. Stat. 1985, ch. 95 1/2, par. 4-105(a)(5).

Darold owned and operated a used-car lot in Vandalia, Illinois, at which his wife, Carol, worked. She acted as the bookkeeper for the business, and completed most of the paperwork generated by the business including Federal and State revenue forms, odometer statements, bills of sale and new title applications.

Darold purchased eight of the nine vehicles involved here from Tri-Ford, Inc. (Tri-Ford), another automobile dealership, and the ninth vehicle from another dealership, Clinton County Motors. All nine vehicles were in used condition when purchased, and all had significantly high mileage figures, ranging from 71,000 to 124,000 miles. Darold sold six of the vehicles directly to third parties; three of the vehicles were sold on consignment by Gary Dial, who owned his own used-car business.

The sale of the nine vehicles to Darold from Tri-Ford and Clinton County Motors constituted the first reassignment of title by a dealer and generated a bill of sale and Federal odometer statement. When one of the vehicles was sold, its title would be transferred to the buyer by execution of the assignment of title, which involved filling out the reverse of the existing certificate of title (the surrender title). (See Ill. Rev. Stat. 1985, ch. 95 1/2, par. 3-113.) The surrender titles did not always accompany the actual transfer of the vehicle; in some cases, the surrender title was later mailed or delivered to defendants.

Testimony at trial established that in all cases concerning the nine vehicles here, the back side of the surrender titles was undated and endorsed in blank by both the last record owner, as seller, and by Tri-Ford or Clinton County Motors as the subsequent dealer. Carol filled out the assignment of title on the back side of the surrender titles and in some cases signed Darold's name.

Five of the nine vehicles involved here had certificates of title 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. Section 3-112.1 requires that titles issued after 1980 contain an odometer certification, requiring each transferor of a motor vehicle to state on the title form: (1) the odometer reading at the time of transfer; (2) the date of transfer; and (3) the transferor's name and current address. (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 3-112.1(b).) If applicable, the transferor is also supposed to check the box on the title form next to one of two sentences which state that the "amount of mileage stated is in excess of 99,999 miles" or the "odometer reading is not the actual mileage" and sign the certificate of title. Ill. Rev. Stat. 1985, ch. 95 1/2, par. 3-112.1(a).

Of the five certificates of title issued after the effective date of section 3 -- 112.1, none contained this information when they were received by defendants from Tri-Ford or Clinton County Motors. Carol filled out this information on these five surrender titles; on only one surrender title was the box checked next to the statement that the odometer reading was not the actual mileage.

Of the three cars sold by Gary Dial, two of which required the mileage certification under section 3 -- 112.1, Dial filled out the purchaser's application for a new certificate of title; he never filled out the reverse of the surrender title. Carol filled out the backs of the surrender titles of those cars. Dial testified that he obtained the mileage figures he entered on the title applications from the odometers of the cars. Carol testified that she relied on the figures Dial used in the new title applications when filling out the odometer certification on the surrender titles of the cars Dial sold on consignment.

Although four vehicles had titles issued before section 3 -- 112.1 was applicable, and did not contain or require an odometer certification to be filled out, Carol wrote in mileage figures on the backs of the surrender titles for those four vehicles.

There was conflicting testimony at trial on whether the Federal odometer statements executed in connection with the sale of the nine vehicles here from Tri-Ford and Clinton County Motors to Darold were: (1) delivered to defendants at the time of the transfer of the cars; and (2) signed in blank by Tri-Ford and Clinton County Motors. Carol testified that not all the odometer statements accompanied delivery of the vehicles, and that none of the nine ...


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