People v. DePalma , 256 Ill. App. 3d 206 ( 1994 )

JUSTICE McLAREN

delivered the opinion of the court:

On January 29, 1992, the defendant, Peter M. DePalma, was charged by indictment with possession of a vehicle with knowledge that the vehicle identification number (VIN) had been removed, a Class 2 felony under the anti-theft provisions of the Illinois Vehicle Code (Code) (Ill. Rev. Stat. 1991, ch. 95½, pars. 4 — 103(a)(4), (b)) (now 625 ILCS 5/4 — 103(a)(4), (b) (West 1992))). The trial court denied the defendant’s pretrial motion to declare the statutory provisions unconstitutional as overly broad and violative of the constitutional guarantees of due process and proportional penalties.

After a stipulated bench trial on February 13, 1992, the trial court found the defendant guilty of the charge and sentenced him to 18 months’ conditional discharge and 41 days’ confinement in the county jail; credit was given for the 41 days already served. Defendant’s motion to reconsider the constitutionality of the provisions and in arrest of judgment was denied, and this timely appeal followed.

On appeal, defendant again contends that section 4 — 103(a)(4) of the Code is overly broad because it criminalizes innocent conduct and, in conjunction with section 4 — 103(b), which makes the offense a Class 2 felony, violates the constitutional guarantees of due process and proportionate penalties. (See U.S. Const., amend. XIV; Ill. Const. 1970, art. I, §§ 2, 11.) Among other things, defendant argues in his initial brief that his conviction should be reversed because the evidence was insufficient to show that he possessed the vehicle with the missing identification number with knowledge accompanied by a criminal purpose. The parties were ordered to submit supplemental briefs to further develop the issue whether the evidence adduced at trial was sufficient to support a conviction beyond a reasonable doubt as to defendant’s mental state, that is, whether defendant’s conduct was accompanied by "criminal knowledge” or "knowledge plus criminal purpose” under People v. Johns (1992), 153 Ill. 2d 436, 441, and People v. Tolliver (1992), 147 Ill. 2d 397, 403. The State maintains that no "criminal intent” should be read into the statute defining the offense. We disagree and reverse defendant’s conviction for the reasons that follow.

The record reveals that defendant was charged with the offense when he was found in possession of a gray 1985 Ford Mustang, bearing a Texas temporary buyer plate No. P — 5748. According to the stipulated evidence, Officer Brian Siebrasse of the Village of Bloomingdale police department would testify that he responded to a police call on January 4, 1992, regarding a person who was sleeping in a car at the Meecham Forest Preserve. He went to the preserve and observed that the 1985 Mustang had no license plate, but had a Texas temporary buyer dashboard plate registered to Intercontinental Auto Brokers of Houston, Texas. He observed that the dashboard vehicle identification number (VIN) plate appeared to be missing. He observed defendant sleeping in the car.

Siebrasse spoke with defendant, and defendant said he knew the VIN plates on the dashboard and door jambs were missing as they were removed when the vehicle was stolen from the previous owner. Defendant said that in the past couple of weeks he had been stopped by the Elk Grove police and the Rolling Meadows police in connection with the VIN plates. Siebrasse would also testify that defendant told him he was the lawful owner of the car at the time and had been sleeping in the car. According to Siebrasse, after a thorough inspection of the car, no VIN plates were located on the door jambs or engine of the vehicle.

On January 11, 1992, after a more thorough inspection of the car, a portion of a VIN plate was located under the passenger side quarter panel. The National Insurance Crime Bureau was contacted, and that bureau was able to reconstruct the VIN using the portion of the number that was located under the passenger quarter panel. The VIN matched the VIN that was on the temporary buyer plate, and it was determined that the car had been reported stolen in Orlando, Florida, and was recovered on May 3, 1991.

The testimony of Officer Syverson of the Elk Grove police department would show that, on November 28, 1991, he observed no VINs when he had an opportunity to stop the same vehicle and would identify defendant as the driver. At that time, defendant was told to take care of the VIN problem and obtain registration for the vehicle.

On the basis of the stipulated evidence, the trial court found defendant guilty of the offense charged and imposed an agreed sentence.

The offense in question is defined by section 4 — 103(a)(4), which provides:

"Offenses relating to motor vehicles and other vehicles— Felonies, (a) It is a violation of this Chapter for:

* * *

(4) A person to buy, receive, possess, sell or dispose of a vehicle, or any essential part thereof, with knowledge that the identification number of the vehicle or any essential part thereof having an identification number has been removed or falsified.” (Ill. Rev. Stat. 1991, ch. 95½, par. 4 — 103(a)(4) (now 625 ILCS 5/4 — 103(a)(4) (West 1992)).)

A person convicted of a violation of that section is guilty of a Class 2 felony and may be imprisoned for not less than three, but not more than seven, years. Ill. Rev. Stat. 1991, ch. 95½, par. 4 — 103(b) (now 625 ILCS 5/4 — 103(b) (West 1992)); Ill. Rev. Stat. 1991, ch. 38, par. 1005 — 8—1(a)(5) (now 730 ILCS 5/5 — 8—l(a)(5)(West 1992)).

Section 4 — 103(a)(4) is part of a statutory scheme of anti-theft laws found in chapter 4 of the Code whose purpose " 'is to protect automobile owners against theft and to protect the general public against the commission of crimes involving stolen automobiles.’ ” (People v. Morris (1990), 136 Ill. 2d 157, 162, quoting People v. One 1979 Pontiac Grand Prix Automobile (1982), 89 Ill. 2d 506, 510.) Grouped under section 4 — 103 are offenses such as knowingly possessing, concealing, selling or disposing of a stolen or converted vehicle; knowingly removing, altering, defacing, destroying or falsifying a manufacturer’s vehicle identification number or an essential part thereof; knowingly concealing or misrepresenting the identity of a vehicle or essential part thereof; and knowingly possessing, buying, selling or exchanging any manufacturer’s vehicle identification number plate. See Ill. Rev. Stat. 1991, ch. 95½, par. 4 — 103(a) (now 625 ILCS 5/4 — 103(a) (West 1992)).

Defendant initially points out that conduct such as affirmatively concealing or misrepresenting the identity of stolen vehicles by changing, destroying or removing their VIN plates contributes to the serious problem of vehicle theft and this more culpable conduct is justifiably criminalized as a Class 2 felony. However, he argues that section 4 — 103(a)(4) is overly broad and unconstitutional because it criminalizes as a Class 2 felony the conduct of one who has no connection with a vehicle theft if he does no more than come into innocent possession of a vehicle with knowledge that its identification number has been removed. The statute criminalizes the mere possession of a vehicle which is missing its VIN plate by persons who need not have had anything to do with the removal of the plate — let alone any aspect of a vehicle theft. Furthermore, the penalty is disproportionate to the seriousness of the offense because it imposes the same penalty on one who innocently possesses a car with a missing VIN plate as one whose culpability is far greater because he knowingly possesses stolen vehicles, deliberately tampers with VIN plates or engages in other knowing involvement in vehicle theft.

Defendant points out that there was no evidence that he was not lawfully in possession of the vehicle and a police report included in the common-law record stated that the car was recovered in Florida and was now "clean.” Defendant urges that one who takes possession of a car should not be expected to ascertain that the VIN plates belonging on the dashboard, engine, door jambs, main body compartment and other essential parts of the vehicle wiU aU be in place and display the correct number. It is quite possible for a person to purchase or come into possession of a car legitimately and only afterward discover that a VIN plate is gone, especially if the plate is missing from a location on the underside of the car. More importantly, defendant observes that a person who discovers that his car is missing a VIN plate would not be able to report that discovery to the Secretary of State or the State Police without admitting to the commission of a Class 2 felony.

The starting point in reviewing the constitutionality of statutes is that the statutes “are presumed constitutional and all reasonable doubts must be resolved in favor of upholding their validity.” (Johns, 153 Ill. 2d at 442.) This court must construe acts of the legislature so as to affirm their constitutionality and validity if it can reasonably be done. (People v. Steffens (1991), 208 Ill. App. 3d 252, 258.) It is the party challenging the constitutionality of a statute that bears the burden of clearly establishing the constitutional violation. People v. Bales (1985), 108 Ill. 2d 182, 188.

The gist of defendant’s argument is that the statutes defining and punishing the offense are overly broad because they arbitrarily and unreasonably penalize innocent conduct and therefore violate the principle of substantive due process. Alternatively, defendant argues that the penalty provided is disproportionate. Under the State’s police power, the legislature has wide discretion to prescribe penalties for defined offenses. (Morris, 136 Ill. 2d at 161.) However, the legislature’s exercise of the police power is constitutional only where the statute in question bears a reasonable relationship to the public interest to be protected, and the means adopted must be a reasonable method of accomplishing the desired objective. (People v. Wick (1985), 107 Ill. 2d 62, 65.) Otherwise stated, “the 'classification of a crime and the penalty provided [must] be reasonably designed to remedy the evils which the legislature has determined to be a threat to public health, safety and general welfare.’ ” (People v. Toliver (1993), 251 Ill. App. 3d 1092, 1100, quoting People v. Bowen (1993), 241 Ill. App. 3d 608, 629.) The determination of reasonableness is a matter for the courts (Morris, 136 Ill. 2d at 161), and the due process test "focuses on the purposes and objectives of the enactment in question” (Johns, 153 Ill. 2d at 445; Morris, 136 Ill. 2d at 162).

In People v. Tolliver (1992), 147 Ill. 2d 397, defendant was charged with the offense of possession of a title without complete assignment under section 4 — 104(a)(2) of the Code (Ill. Rev. Stat. 1989, ch. 95½, par. 4 — 104(a)(2) (now 625 ILCS 5/4 — 104(a)(2)(West 1992))), a related anti-theft law pertaining to the possession of titles and registration. Under that provision, the failure to complete the title and assign it to a specific person is against the law. In that case, the title owner had signed the document, but the name of the buyer had not been filled in. After he purchased the car, Murphy, the buyer, noticed that the back of the title had been signed by David Hayes, but not by the defendant who sold the car to Murphy. Murphy tried unsuccessfully either to get the defendant to sign the title or get his money back. When Murphy complained to the Secretary of State, the State’s Attorney of Montgomery County subsequently brought charges against the defendant.

The defendant argued that the statute was overly broad and a violation of due process because it punished innocent behavior where a person held an incomplete certificate of title with no intention of committing a crime. The court noted that Murphy, who purchased the car from the defendant, also could have been charged with a felony since he knowingly possessed the same incomplete title before he tried to return it. Because there were various scenarios possible during a transaction for the purchase of a vehicle where the parties could be in nonculpable or innocent possession of an incomplete assignment of title, the supreme court determined that such "innocent but knowing conduct, which is wholly devoid of devious intent, should not render a person guilty of a felony.” Tolliver, 147 Ill. 2d at 402.

The Tolliver court observed that, while the State has a legitimate interest in preventing car theft through this type of statute, it has an equally important interest in protecting otherwise innocent conduct from criminal prosecution. Expanding on its prior decision in People v. Gean (1991), 143 Ill. 2d 281, to require that the offense contain a "knowledge” element, the Tolliver court modified the "knowledge” requirement it had read into the statute to mean that an accused could be convicted of the offense only if he possessed the incomplete title with a "criminal knowledge” or "knowledge with an intent to defraud or commit a crime,” that is, "knowledge plus criminal purpose.” (Emphasis added.) (Tolliver, 147 Ill. 2d at 400-01, 403.) Since there was no evidence that the defendant had a criminal purpose or that defendant stole the car or attempted to perpetrate a fraud, the supreme court reversed the trial court’s finding of guilt and discharged the defendant.

We believe that the analysis and rule of Tolliver should be followed in the instant case. The knowledge requirement of section 4 — 103(a)(4) of the Code must be read to mean "criminal knowledge,” that is, "knowledge with an intent to defraud or commit a crime.” Otherwise a possessor of a vehicle missing a VIN plate who had no criminal purpose whatsoever would be subject to a felony. Here, defendant, though aware of the missing VIN which was the result of a prior theft, came into lawful possession of a vehicle with a temporary Texas buyer’s registration. Neither the lawfulness of defendant’s possession nor the registration has been challenged by the State. There is no evidence that defendant was involved in fraudulent or theft-related activity in connection with this vehicle.

If the statute is interpreted as the State suggests, persons with no criminal purpose who come into possession of a vehicle knowing that it has a missing or altered VIN tag would automatically be guilty of a Class 2 felony. Any attempt to report a VIN plate difficulty would constitute an admission to a felony, and there would be no legal protection or defense for anyone ensnared in this "catch-22.” Therefore, we conclude that the knowledge requirement of section 4 — 103(a)(4) must be read to include the criminal knowledge requirement adopted by the supreme court in Tolliver in order to uphold the constitutionality of the statute on the basis of due process. Otherwise, we would be forced to conclude that there was no reasonable relationship between the statute creating this felony offense and the purpose of deterring theft or fraudulent conduct involving automobiles where it penalizes innocent conduct and precludes the acquisition of new VIN plates without the commission of a felony.

The dissent claims that Tolliver is distinguishable because that case involved possession of an incomplete certificate of title, whereas the present matter involves a missing VIN number. We disagree. The present case, like Tolliver and Gean, arises out of matters governed by the Illinois Vehicle Code. The supreme court in Tolliver did not limit its holding to the facts of that case. Indeed, the court clearly reaffirmed the general proposition that, absent a clear indication by the legislature to the contrary, "a felony penalty cannot be imposed for an absolute liability offense” (one which requires no guilty knowledge). (Tolliver, 147 Ill. 2d at 401.) As we pointed out earlier, Tolliver refined the holding of Gean to require "criminal knowledge” in cases involving auto registration.

Despite the dissent’s contention to the contrary, we can readily envision cases in which persons may come into possession of vehicles with altered or missing VIN tags innocently. Further, we find the dissent’s reliance on People v. Brown (1983), 98 Ill. 2d 374, inappropriate. Brown upheld the misdemeanor conviction of a defendant who was charged with possession of an automobile with a removed or falsified VIN. number. That case was decided before the legislature imposed Class 2 felony punishment for this crime. It is because the crime now carries a felony sentence that we must insist that "criminal knowledge” be found for conviction.

In reaching this conclusion, we observe that this offense was originally considered regulatory or malum prohibitum, that is, an absolute liability offense without a scienter requirement carrying with it a misdemeanor penalty. (See People v. Brown (1983), 98 Ill. 2d 374.) Other jurisdictions have read knowledge with a criminal purpose or intent into similar statutes. (See State v. Self (Ala. Crim. App. 1986), 492 So. 2d 319 (firearm identification number analogized to VIN; possession with knowledge and intent to conceal or misrepresent identity of firearm read into statute to uphold constitutionality and felony penalty); see also People v. Suk (1990), 220 Cal. App. 3d 952, 269 Cal. Rptr. 676 (intent to prejudice, damage, injure or defraud expressly stated in statute). But cf. Commonwealth v. White (1978), 259 Pa. Super. 397, 393 A.2d 886 (requirement of criminal intent or guilty knowledge must be read into statute to justify misdemeanor status).) Thus, the State’s argument that a higher culpable mental state should not be required is not persuasive, particularly where it relies on Brown, which upheld the constitutionality of the statute as a misdemeanor offense.

Since we have found the statute constitutional, we shall briefly address defendant’s alternative contention that the statutory Class 2 penalty must be considered unconstitutionally disproportionate because defendant’s conduct did not directly involve theft-related activity and the penalty is as severe as if he had knowingly possessed a stolen vehicle or deliberately tampered with the VIN plate. In People v. Morris (1990), 136 Ill. 2d 157, the defendant made a similarly successful argument. There, the defendant was charged with the Class 2 felony of knowingly possessing an altered temporary registration permit for his own vehicle. (Ill. Rev. Stat. 1987, ch. 95½, pars. 4 — 104(a)(3), (b)(2) (now 625 ILCS 5/4 — 104(a)(3), (b)(2) (West 1992)).) The trial court found the penalty unconstitutionally disproportionate to the offense committed by the defendant.

The supreme court observed that the defendant had altered the temporary registration permit on his own vehicle, but there was no evidence that the alteration contributed in any way to any vehicle theft-related crime. The court concluded that the trial court was correct in holding unconstitutional the penalty of a Class 2 felony for that offense and found the penalty violative of due process as applied to the facts of that case. The court also found the penalty violated the guarantee of proportionate penalties under the State constitution.

Article I, section 11, of the constitution provides: "All penalties shall be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship.” (Ill. Const. 1970, art. I, § 11.) The supreme court determined that the statute classifying the possession of an altered temporary registration permit (license-applied-for registration permit) at the. same level as possession of a stolen motor vehicle by making both offenses Class 2 felonies violated the due process and proportionality requirements of the Illinois Constitution where the offense was committed by an owner of the vehicle and no theft has occurred. The court found no relationship between the offense when committed by one who owns or who is legally entitled to the vehicle and the legislative purpose of protecting automobile owners against theft or the general public against the commission of crimes involving stolen automobiles. Morris, 136 Ill. 2d at 167-68.

Here, the evidence shows that defendant had knowledge of the missing VIN and appeared to have been in lawful possession of the vehicle. There was no relationship between his conduct and the stated legislative purpose. Absent the higher criminal knowledge requirement which we have now read into section 4 — 103(a)(4) of the Code, the rationale in Morris would require finding the Class 2 felony penalty disproportionate as to the facts in this case if the defendant’s conviction were to be affirmed in accord with the State’s interpretation of. the statute.

Under the facts of this case, we determine, pursuant to Tolliver (147 Ill. 2d 397), section 4 — 103(a)(4) of the Code is constitutional to the extent that it requires the offense to be committed with "criminal knowledge,” that is, "knowledge with an intent to defraud or commit a crime.” Since the stipulated evidence in the record was insufficient to show that defendant possessed this requisite criminal knowledge, his conviction must be reversed. Defendant is ordered discharged.

The judgment of the circuit court of Du Page County is reversed. Defendant is ordered discharged.

Reversed.

QUETSCH, J., concurs.