July 11, 2001

No. 2--00--0574

JUSTICE GROMETER delivered the opinion of the court:

Defendant, Roderick R. Owens, was charged by indictment with making a falsereport of a vehicle theft (625 ILCS 5/4--103(a)(6) (West 1996)) and insurancefraud (720 ILCS 5/46--1 (West 1996)). A bench trial was held in the circuitcourt of Lake County. At the close of the State's evidence, the court directeda finding in defendant's favor on the charge of insurance fraud. Subsequently,the court found defendant guilty of making a false report of a vehicle theft. The court sentenced defendant to a 6-month term of imprisonment and a 30-monthterm of probation. The trial court also ordered defendant to pay $19,468 inrestitution to his insurer.

On appeal, defendant argues that the State failed to prove him guiltybeyond a reasonable doubt of making a false report of a vehicle theft. Defendantalso argues that the trial court was not authorized to order him to payrestitution. For the reasons that follow, we affirm defendant's conviction butvacate that portion of the sentence ordering defendant to pay restitution.

I. BACKGROUND

On June 10, 1998, defendant was indicted for making a false report of avehicle theft (625 ILCS 5/4--103(a)(6) (West 1996)) and insurance fraud (720 ILCS5/46--1 (West 1996)). The cause proceeded to a bench trial in which thefollowing testimony was presented.

Officer Michael Young of the Gurnee police department testified that atapproximately 3:50 p.m. on September 21, 1997, defendant reported the theft ofhis vehicle to the Gurnee police department. Young further testified thatdefendant described his car as a red 1991 Chevrolet Corvette convertible with awhite top. Defendant told Young that he owned the vehicle outright and that itwas insured with State Farm. Defendant also told Young that the car bore licenseplate number B804549. Young did not request a vehicle identification number(VIN) from defendant. However, Young testified that he was able to locate theVIN by running a computer search of the license plate number provided bydefendant.

Illinois State Trooper Joseph Perez testified that he was assigned toinvestigate a discrepancy in the report of the theft of a 1991 red Corvette thatwas filed with the Gurnee police department. Perez's investigation revealed thatthe vehicle in question was in the possession of Robert Spurling.

Thomas Stancey testified that in April 1994 he purchased a 1991 redChevrolet Corvette convertible from Hinsdale Motor Cars. Stancey did not recallthe automobile's VIN. However, according to the bill of sale, the VIN was1G1YY3385M5109151. Stancey financed the vehicle through LaSalle NorthwestNational Bank and made his last payment on the car in April 1997. However, henever received title to the vehicle. On or about May 13, 1997, Stancey placedhis car with D&M Corvette Specialists (D&M), a business that sells Corvettes onconsignment.

The State introduced into evidence a certificate of title for a red 1991Chevrolet Corvette convertible. The certificate of title was in the name ofStancey and his wife, Veronica. On the reverse of the certificate was ahandwritten assignment of title to a Roderick Owens dated May 29, 1997. Theassignment of title was purportedly signed by Stancey and his wife. However,Stancey testified that the signatures did not belong to him or his wife and thatthe mileage indicated on the assignment of title (39,519) was incorrect.

David Glass of D&M testified that Robert Spurling purchased the StanceyCorvette in September 1997 for approximately $22,000. According to Glass, priorto its sale, D&M displayed the Corvette in an indoor showroom that was locked atnight. Glass stated that, when Stancey brought the Corvette to D&M, he did notfurnish a title for the vehicle. However, Glass, Stancey, and Spurling workedwith the Secretary of State to obtain a title. Glass stated that he does notknow defendant and that he never sold a car to him. On cross-examination, Glassadmitted that prospective customers probably took the Corvette for a test-drive. However, he stated that a salesperson always accompanies customers on test-drives.

Robert Spurling testified that on September 10, 1997, he purchased a redCorvette convertible with a white top from D&M. Spurling did not obtain thetitle to the vehicle at the time of purchase. However, about one year after thepurchase, he received a duplicate title to the automobile. Spurling testifiedthat he keeps the car in the garage of his Ogle County residence, except inwinter, when he stores the vehicle in his brother-in-law's barn in Tampico,Illinois.

Fred Plohm, an officer with the Secretary of State Police, testified thatin 1997 Stancey initiated a complaint in reference to a missing title to his red1991 Chevrolet Corvette. Plohm began his investigation by ordering a chain oftitle to the vehicle. Plohm testified that a certificate of title for theCorvette had first been issued to Geraldine Mennen. Mennen assigned the titleto Hinsdale Motor Cars, Inc. Hinsdale Motor Cars assigned the title to Stanceyand his wife, with a lien in favor of LaSalle Northwest National Bank. Acertificate of title was issued in the name of Stancey and his wife. On the backof the certificate of title issued to the Stanceys, there was an assignment oftitle, dated May 29, 1997, to a Roderick Owens, 1750 N. Madison Street, Maywood,Illinois. On June 17, 1997, the Secretary of State issued a certificate of titlefor the vehicle in the name of Roderick Owens. Plohm testified that each of theaforementioned certificates of title were for the same vehicle and listed thesame VIN.

Based on his investigation into the vehicle's chain of title, Plohm sentnotices to Stancey and Owens. Stancey contacted Plohm regarding the vehicle. Plohm attempted to go to Owens' Maywood address, but discovered that it did notexist. Plohm was also unable to contact Owens at an Aurora address that he hadprovided on one of the title documents. Plohm then contacted D&M and Stancey andinstructed them to take the Corvette to a Secretary of State facility forinspection. At the time of inspection, the vehicle's odometer read 27,988 miles. After the inspection, Plohm concluded that the vehicle bore an original,unaltered VIN tag. At the conclusion of his investigation, Plohm concluded thatthe Corvette belonged to the Stanceys and that Owens fraudulently obtained hiscertificate of title. The Secretary of State revoked Owens' certificate of titleand issued a duplicate certificate in the Stanceys' name.

Steve Studzinski, Jr., a special investigator for the American AmbassadorInsurance Company (American Ambassador), testified that American Ambassadorissued an automobile insurance policy to defendant. On August 19, 1997,defendant added a 1991 Chevrolet Corvette to the policy. Studzinski explainedthat when a policyholder reports the theft of a vehicle, American Ambassadorsends the policyholder a packet containing an affidavit of automobile totaltheft. The policyholder must complete the affidavit, have it notarized, andreturn it to American Ambassador before it will issue a settlement check.

Admitted into evidence was an affidavit of automobile total theft receivedby American Ambassador with the name of Roderick Owens listed as thepolicyholder. According to the affidavit, on September 21, 1997, a red 1991Chevrolet Corvette convertible with a white top was stolen from a parking lot atthe Gurnee Mills Mall. The affidavit listed the vehicle's license plate numberas B804549 and its VIN as 1G1YY3385M5109151. The affidavit indicated that thevehicle had been purchased for $22,000 from Kenneth Potts of Oak Park, Illinois,on May 29, 1997. On November 13, 1997, American Ambassador issued a settlementcheck to Roderick Owens in the amount of $19,468. Studzinski testified that thecheck was cashed the following day.

On cross-examination, Studzinski testified that the affidavit of automobiletotal theft is blank when it is mailed to the insured and that the packetcontaining the affidavit would be sent to the address of the insured as it islisted on the policy. Studzinski admitted that he did not know if defendant wasthe individual who completed the affidavit. In addition, Studzinski acknowledgedthat he did not know who cashed the settlement check issued by AmericanAmbassador.

At the close of the State's evidence, defendant moved for a directedfinding with respect to both counts. The trial court denied defendant's motionwith respect to the charge of making a false report of a vehicle theft butgranted defendant's motion with respect to the charge of insurance fraud. Thecourt determined that the State failed to present sufficient evidence thatdefendant was the individual responsible for submitting the affidavit ofautomobile total theft to American Ambassador or that defendant had received thesettlement check.

Defendant's first witness was his mother, Geraldine Dollee. Dolleetestified that in June 1997 defendant took her for a ride in a red Corvette witha white top. Dollee saw defendant in the Corvette on approximately three otheroccasions. Dollee stated that she did not check the vehicle's VIN and she didnot recall whether the car was a convertible, whether the car carried licenseplates, or the type of wheels the car had.

Josie Willingham, defendant's grandmother, testified that during the summerof 1997 defendant would often come to visit her. According to Willingham, on atleast a couple of occasions, she observed defendant driving a red car with awhite top and a "long nose."

Defendant testified that he owned a 1991 red Chevrolet Corvette convertiblebefore it was stolen on September 21, 1997. According to defendant, on thatdate, he accompanied his girlfriend and some of his girlfriend's relatives toGurnee Mills Mall. Defendant and his girlfriend drove in a Corvette while hisgirlfriend's relatives drove in a Buick Century. The group arrived at the mallat about 10:30 a.m. and parked in lot B. At approximately 2 p.m., defendant wentto his vehicle to drop off some packages. He then continued shopping until about3 p.m. At that time, defendant returned to the parking lot and discovered thathis vehicle was missing.

Defendant testified that he immediately reported the theft to a mallsecurity officer. The security officer told defendant to file a police report. Accordingly, defendant's girlfriend's mother drove him to the Gurnee policedepartment. Defendant entered the police station with his girlfriend. He spokewith Officer Young in a conference room. He provided Young with informationregarding the Corvette's physical characteristics. However, defendant testifiedthat Young never asked him for the car's VIN and that, in any case, he did notmemorize the VIN.

Defendant then testified as to how he acquired the Corvette. Defendantexplained that in May 1997 he was involved in a vehicle collision with a man whoidentified himself as Thomas Stancey. After the accident, Stancey told defendantthat he was a "body man" and that he could repair defendant's vehicle, a 1993 GMCTyphoon. Accordingly, defendant took his vehicle to Stancey's shop. At somepoint, Stancey told defendant that he could not afford to fix the Typhoon. Stancey then offered defendant his choice of several vehicles at the shop. Defendant selected a 1991 red Chevrolet Corvette convertible with a white top. In exchange for the Corvette, defendant agreed to give Stancey his Typhoon and$6,000 in cash.

Defendant testified that he took possession of the Corvette on May 24,1997. Stancey accompanied defendant to a currency exchange in Aurora where theycompleted some title documents, including the assignment of title. According todefendant, he received the certificate of title for the Corvette on June 2, 1997. Defendant testified that he never checked the VIN on his vehicle against the VINlisted on the certificate of title.

On cross-examination, defendant stated that he paid $22,000 for theTyphoon. However, he later indicated that he paid only $19,000 for the vehicle. He also stated that he installed $3,500 worth of stereo equipment on the vehicle. In addition, defendant acknowledged that he never completed a police report forthe accident with Stancey. He also testified that American Ambassador issued aninsurance policy for the Typhoon but that he did not report the accident to theinsurer. Defendant stated that at the time of the accident he was with a friend. However, he did not recall what happened to his passenger after the accident. Defendant could not recall the exact date of the accident or the location ofStancey's body shop. Defendant testified that the Corvette had 39,000 miles onit when he bought it. Defendant stated that the currency exchange where he andStancey executed the title was in Crestwood.

Defendant also admitted that he completed an affidavit of automobile totaltheft and returned it to American Ambassador. The affidavit states thatdefendant purchased the Corvette from Kenneth Potts of Oak Park, Illinois, on May29, 1997. The affidavit further states that defendant paid $22,000 for thevehicle. On redirect examination, defendant explained that Potts is an agent forStancey's body shop and that he was the individual that physically handeddefendant title to the vehicle.

Following closing arguments, the trial court found defendant guilty ofmaking a false report of a vehicle theft. The court found that defendant'stestimony was inconsistent and incredible. The court sentenced defendant to 6months' imprisonment and 30 months' probation. In addition, the court ordereddefendant to pay American Ambassador $19,468 in restitution, payable in monthlyinstallments of $150. The trial court denied defendant's motion to reconsidersentence, and this timely appeal followed.

II. ANALYSIS

A. Reasonable Doubt 

Defendant first argues that the State failed to prove beyond a reasonabledoubt that he knowingly made a false report of a vehicle theft. Defendantdivides his argument into two separate parts. First, he notes that section 4--103(a)(6) of the Illinois Vehicle Code (Vehicle Code) (625 ILCS 5/4--103(a)(6)(West 1996)) requires the State to prove beyond a reasonable doubt that a person"knowingly [made] a false report of the theft *** of a vehicle." Relyingprincipally upon People v. Tolliver, 147 Ill. 2d 397 (1992), and People v.DePalma, 256 Ill. App. 3d 206 (1994), defendant asserts that a conviction undersection 4--103(a)(6) requires the State to prove that he acted with "criminalknowledge," i.e., knowledge plus criminal purpose. Second, applying the"criminal knowledge" requirement to the facts of this case, defendant insiststhat the State did not prove him guilty beyond a reasonable doubt.

The State urges this court to reject defendant's contention that section4--103(a)(6) of the Vehicle Code requires it to prove that a defendant acted with"criminal knowledge." The State argues that the plain language of section 4--103(a)(6) requires only that a defendant act knowingly, i.e., that a defendantknow the report was false. The State also disputes defendant's contention thatit did not prove him guilty beyond a reasonable doubt. The State argues that itlinked defendant to the Stancey Corvette through the information defendantprovided the Gurnee police department, i.e., the physical description of thevehicle and its license plate number. Through this information, the Stateobtained the VIN. The State also points out that it presented testimonyregarding the vehicle's chain of title and that the assignment of title todefendant was fraudulent.

We begin by determining the appropriate mental state applicable to section4--103(a)(6) of the Vehicle Code. The primary rule of statutory construction isto ascertain and give effect to the intent of the legislature. People v. Wett,308 Ill. App. 3d 729, 734 (1999). When an enactment is clear and unambiguous,we may not depart from the meaning of the plain language of the statute byreading into it exceptions, limitations, or conditions that the legislature didnot express. Wett, 308 Ill. App. 3d at 734.

Section 4--103 states in pertinent part:

"(a) It is a violation of this Chapter for:

* * *

(6) A person to knowingly make a false report of the theft or conversionof a vehicle to any police officer of this State." 625 ILCS 5/4--103(West 1996).

The plain language of the statute does not support defendant's interpretation. The legislature clearly and unambiguously supplied "knowledge" as the applicablemental state for a violation of section 4--103(a)(6).

Indeed, our supreme court recently reaffirmed the principle that, where thelegislature expressly supplies a statute with a mental state, a court mustenforce the statute as written. In People v. Wright, 194 Ill. 2d 1 (2000), oursupreme court found section 5--401.2 of the Vehicle Code (625 ILCS 5/5--401.2(West 1996)) unconstitutional on due process grounds. Wright, 194 Ill. 2d at 30. Section 5--401.2 required certain individuals licensed under the Vehicle Code tomaintain for three years at their place of business certain records relating tothe acquisition and disposition of vehicles and parts. 625 ILCS 5/5--401.2 (West1996). The statute also provided that "[a]ny person who knowingly fails to keepthe records required by this Section or who knowingly violates this Section shallbe guilty of a Class 2 felony." 625 ILCS 5/5--401.2(i) (West 1996).

As noted above, the court determined that section 2--401.2 of the VehicleCode was unconstitutional. In so holding, however, the court rejected thedefendant's invitation to follow its decision in Tolliver, 147 Ill. 2d 397, andread into section 5--401.2 the mental state of knowledge plus criminal purpose. Wright, 194 Ill. 2d at 29. The court explained that it was able to imply themental state of knowledge plus criminal purpose in Tolliver because the sectionof the Vehicle Code at issue in that case lacked a mental state entirely and thelegislature did not intend to create an absolute liability offense. Wright, 194Ill. 2d at 29. However, in promulgating section 5--401.2, the legislatureexpressly and unambiguously provided the mental state of simple knowledge. Wright, 194 Ill. 2d at 29-30. As in Wright, the legislature supplied a mentalstate for the statute at issue in this case. Consequently, we are bound toenforce the statute as written.

Defendant, however, citing to Tolliver, 147 Ill. 2d 397, and DePalma, 256Ill. App. 3d 206, insists that a conviction under section 4--103(a)(6) of theVehicle Code requires the State to prove more than mere knowledge; it requiresthe State to prove knowledge that the report was false plus criminal purpose. However, both Tolliver and DePalma are distinguishable from the facts of thiscase.

In Tolliver, 147 Ill. 2d 397, the defendant was charged with possession oftitle without complete assignment. Ill. Rev. Stat. 1989, ch. 95