No. 2--00--0574	  

______________________________________________________________________________

	IN THE

	APPELLATE COURT OF ILLINOIS

	SECOND DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS,	)	Appeal from the Circuit 

	)	Court of Lake County.

	Plaintiff-Appellee,	)	

	)

v.		)	No. 98--CF--1378

	)

RODERICK R. OWENS,	)	Honorable 

	)	George Bridges

	Defendant-Appellant.	)	Judge, Presiding.

____________________________________________________________________________________________________________________________________________________________

	JUSTICE GROMETER delivered the opinion of the court:

	Defendant, Roderick R. Owens, was charged by indictment with making a false

report of a vehicle theft (625 ILCS 5/4--103(a)(6) (West 1996)) and insurance

fraud (720 ILCS 5/46--1 (West 1996)).  A bench trial was held in the circuit

court of Lake County.  At the close of the State's evidence, the court directed

a 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-month

term of probation.  The trial court also ordered defendant to pay $19,468 in

restitution to his insurer.

	On appeal, defendant argues that the State failed to prove him guilty

beyond a reasonable doubt of making a false report of a vehicle theft.  Defendant

also argues that the trial court was not authorized to order him to pay

restitution.  For the reasons that follow, we affirm defendant's conviction but

vacate 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 a

vehicle theft (625 ILCS 5/4--103(a)(6) (West 1996)) and insurance fraud (720 ILCS

5/46--1 (West 1996)).  The cause proceeded to a bench trial in which the

following testimony was presented.

	Officer Michael Young of the Gurnee police department testified that at

approximately 3:50 p.m. on September 21, 1997, defendant reported the theft of

his vehicle to the Gurnee police department. Young further testified that

defendant described his car as a red 1991 Chevrolet Corvette convertible with a

white top.  Defendant told Young that he owned the vehicle outright and that it

was insured with State Farm.  Defendant also told Young that the car bore license

plate number B804549.  Young did not request a vehicle identification number

(VIN) from defendant.  However, Young testified that he was able to locate the

VIN by running a computer search of the license plate number provided by

defendant.

	Illinois State Trooper Joseph Perez testified that he was assigned to

investigate a discrepancy in the report of the theft of a 1991 red Corvette that

was filed with the Gurnee police department.  Perez's investigation revealed that

the vehicle in question was in the possession of Robert Spurling.

	Thomas Stancey testified that in April 1994 he purchased a 1991 red

Chevrolet Corvette convertible from Hinsdale Motor Cars.  Stancey did not recall

the automobile's VIN.  However, according to the bill of sale, the VIN was

1G1YY3385M5109151.  Stancey financed the vehicle through LaSalle Northwest

National Bank and made his last payment on the car in April 1997.  However, he

never received title to the vehicle.  On or about May 13, 1997, Stancey placed

his car with D&M Corvette Specialists (D&M), a business that sells Corvettes on

consignment.

	The State introduced into evidence a certificate of title for a red 1991

Chevrolet Corvette convertible.  The certificate of title was in the name of

Stancey and his wife, Veronica.  On the reverse of the certificate was a

handwritten assignment of title to a Roderick Owens dated May 29, 1997.  The

assignment 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 that

the mileage indicated on the assignment of title (39,519) was incorrect.

	David Glass of D&M testified that Robert Spurling purchased the Stancey

Corvette in September 1997 for approximately $22,000.  According to Glass, prior

to its sale, D&M displayed the Corvette in an indoor showroom that was locked at

night.  Glass stated that, when Stancey brought the Corvette to D&M, he did not

furnish a title for the vehicle.  However, Glass, Stancey, and Spurling worked

with the Secretary of State to obtain a title.  Glass stated that he does not

know defendant and that he never sold a car to him.  On cross-examination, Glass

admitted 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 red

Corvette convertible with a white top from D&M.  Spurling did not obtain the

title to the vehicle at the time of purchase.  However, about one year after the

purchase, he received a duplicate title to the automobile.  Spurling testified

that he keeps the car in the garage of his Ogle County residence, except in

winter, 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 that

in 1997 Stancey initiated a complaint in reference to a missing title to his red

1991 Chevrolet Corvette.  Plohm began his investigation by ordering a chain of title to the vehicle.  Plohm testified that a certificate of title for the

Corvette had first been issued to Geraldine Mennen.  Mennen assigned the title

to Hinsdale Motor Cars, Inc.  Hinsdale Motor Cars assigned the title to Stancey

and his wife, with a lien in favor of LaSalle Northwest National Bank.  A

certificate of title was issued in the name of Stancey and his wife.  On the back

of the certificate of title issued to the Stanceys, there was an assignment of

title, 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 title

for the vehicle in the name of Roderick Owens.  Plohm testified that each of the

aforementioned certificates of title were for the same vehicle and listed the

same VIN.

	Based on his investigation into the vehicle's chain of title, Plohm sent

notices to Stancey and Owens.  Stancey contacted Plohm regarding the vehicle. 

Plohm attempted to go to Owens' Maywood address, but discovered that it did not

exist.  Plohm was also unable to contact Owens at an Aurora address that he had

provided on one of the title documents.  Plohm then contacted D&M and Stancey and

instructed them to take the Corvette to a Secretary of State facility for

inspection.  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 that

the Corvette belonged to the Stanceys and that Owens fraudulently obtained his

certificate of title.  The Secretary of State revoked Owens' certificate of title

and issued a duplicate certificate in the Stanceys' name.

	Steve Studzinski, Jr., a special investigator for the American Ambassador

Insurance Company (American Ambassador), testified that American Ambassador

issued an automobile insurance policy to defendant.  On August 19, 1997,

defendant added a 1991 Chevrolet Corvette to the policy.  Studzinski explained that when a policyholder reports the theft of a vehicle, American Ambassador

sends the policyholder a packet containing an affidavit of automobile total theft.  The policyholder must complete the affidavit, have it notarized, and

return it to American Ambassador before it will issue a settlement check.

	Admitted into evidence was an affidavit of automobile total theft received

by American Ambassador with the name of Roderick Owens listed as the

policyholder.  According to the affidavit, on September 21, 1997, a red 1991

Chevrolet Corvette convertible with a white top was stolen from a parking lot at

the Gurnee Mills Mall.  The affidavit listed the vehicle's license plate number

as B804549 and its VIN as 1G1YY3385M5109151.  The affidavit indicated that the

vehicle 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 settlement

check to Roderick Owens in the amount of $19,468.  Studzinski testified that the

check was cashed the following day.

	On cross-examination, Studzinski testified that the affidavit of automobile

total theft is blank when it is mailed to the insured and that the packet

containing the affidavit would be sent to the address of the insured as it is

listed on the policy.  Studzinski admitted that he did not know if defendant was

the individual who completed the affidavit.  In addition, Studzinski acknowledged

that he did not know who cashed the settlement check issued by American

Ambassador.

	At the close of the State's evidence, defendant moved for a directed

finding with respect to both counts.  The trial court denied defendant's motion

with respect to the charge of making a false report of a vehicle theft but

granted defendant's motion with respect to the charge of insurance fraud.  The

court determined that the State failed to present sufficient evidence that

defendant was the individual responsible for submitting the affidavit of automobile total theft to American Ambassador or that defendant had received the

settlement check.

	Defendant's first witness was his mother, Geraldine Dollee.  Dollee

testified that in June 1997 defendant took her for a ride in a red Corvette with

a white top.  Dollee saw defendant in the Corvette on approximately three other

occasions.  Dollee stated that she did not check the vehicle's VIN and she did

not recall whether the car was a convertible, whether the car carried license

plates, or the type of wheels the car had.

	Josie Willingham, defendant's grandmother, testified that during the summer

of 1997 defendant would often come to visit her.  According to Willingham, on at

least a couple of occasions, she observed defendant driving a red car with a

white top and a "long nose."

	Defendant testified that he owned a 1991 red Chevrolet Corvette convertible

before it was stolen on September 21, 1997.  According to defendant, on that

date, he accompanied his girlfriend and some of his girlfriend's relatives to

Gurnee Mills Mall.  Defendant and his girlfriend drove in a Corvette while his

girlfriend's relatives drove in a Buick Century.  The group arrived at the mall

at about 10:30 a.m. and parked in lot B.  At approximately 2 p.m., defendant went

to his vehicle to drop off some packages.  He then continued shopping until about

3 p.m.  At that time, defendant returned to the parking lot and discovered that

his vehicle was missing.

	Defendant testified that he immediately reported the theft to a mall

security officer.  The security officer told defendant to file a police report. 

Accordingly, defendant's girlfriend's mother drove him to the Gurnee police

department.  Defendant entered the police station with his girlfriend.  He spoke

with Officer Young in a conference room.  He provided Young with information

regarding the Corvette's physical characteristics.  However, defendant testified that Young never asked him for the car's VIN and that, in any case, he did not

memorize the VIN.

	Defendant then testified as to how he acquired the Corvette.  Defendant

explained that in May 1997 he was involved in a vehicle collision with a man who

identified himself as Thomas Stancey.  After the accident, Stancey told defendant

that he was a "body man" and that he could repair defendant's vehicle, a 1993 GMC

Typhoon.  Accordingly, defendant took his vehicle to Stancey's shop.  At some

point, 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 they

completed some title documents, including the assignment of title.  According to

defendant, 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 VIN

listed on the certificate of title.

	On cross-examination, defendant stated that he paid $22,000 for the

Typhoon.  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 for

the accident with Stancey.  He also testified that American Ambassador issued an

insurance policy for the Typhoon but that he did not report the accident to the

insurer.  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 of Stancey's body shop.  Defendant testified that the Corvette had 39,000 miles on

it when he bought it.  Defendant stated that the currency exchange where he and

Stancey executed the title was in Crestwood.

	Defendant also admitted that he completed an affidavit of automobile total

theft and returned it to American Ambassador.  The affidavit states that

defendant purchased the Corvette from Kenneth Potts of Oak Park, Illinois, on May

29, 1997.  The affidavit further states that defendant paid $22,000 for the

vehicle.  On redirect examination, defendant explained that Potts is an agent for

Stancey's body shop and that he was the individual that physically handed

defendant title to the vehicle.  

	Following closing arguments, the trial court found defendant guilty of

making a false report of a vehicle theft.  The court found that defendant's

testimony was inconsistent and incredible.  The court sentenced defendant to 6

months' imprisonment and 30 months' probation.  In addition, the court ordered

defendant to pay American Ambassador $19,468 in restitution, payable in monthly

installments of $150.  The trial court denied defendant's motion to reconsider

sentence, and this timely appeal followed.

II.  ANALYSIS

A.  Reasonable Doubt

	Defendant first argues that the State failed to prove beyond a reasonable

doubt that he knowingly made a false report of a vehicle theft.  Defendant

divides 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." Relying

principally upon People v. Tolliver, 147 Ill. 2d 397 (1992), and People v. DePalma, 256 Ill. App. 3d 206 (1994), defendant asserts that a conviction under section 4--103(a)(6) requires the State to prove that he acted with "criminal

knowledge," i.e., knowledge plus criminal purpose.  Second, applying the "criminal knowledge" requirement to the facts of this case, defendant insists

that the State did not prove him guilty beyond a reasonable doubt. 

	The State urges this court to reject defendant's contention that section

4--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 defendant know the report was false.  The State also disputes defendant's contention that

it did not prove him guilty beyond a reasonable doubt.  The State argues that it

linked defendant to the Stancey Corvette through the information defendant

provided the Gurnee police department, i.e., the physical description of the vehicle and its license plate number.  Through this information, the State

obtained the VIN.  The State also points out that it presented testimony

regarding the vehicle's chain of title and that the assignment of title to

defendant was fraudulent.

	We begin by determining the appropriate mental state applicable to section

4--103(a)(6) of the Vehicle Code.  The primary rule of statutory construction is

to 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 by

reading into it exceptions, limitations, or conditions that the legislature did

not 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 conversion

of 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 applicable

mental state for a violation of section 4--103(a)(6).

	Indeed, our supreme court recently reaffirmed the principle that, where the

legislature expressly supplies a statute with a mental state, a court must

enforce the statute as written.  In People v. Wright, 194 Ill. 2d 1 (2000), our supreme 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 to

maintain for three years at their place of business certain records relating to

the acquisition and disposition of vehicles and parts.  625 ILCS 5/5--401.2 (West

1996).  The statute also provided that "[a]ny person who knowingly fails to keep

the records required by this Section or who knowingly violates this Section shall

be 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 Vehicle

Code was unconstitutional.  In so holding, however, the court rejected the

defendant's invitation to follow its decision in Tolliver, 147 Ill. 2d 397, and read 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 the mental state of knowledge plus criminal purpose in Tolliver because the section of the Vehicle Code at issue in that case lacked a mental state entirely and the legislature did not intend to create an absolute liability offense.  Wright, 194 Ill. 2d at 29.  However, in promulgating section 5--401.2, the legislature

expressly and unambiguously provided the mental state of simple knowledge.  Wright, 194 Ill. 2d at 29-30.  As in Wright, the legislature supplied a mental state for the statute at issue in this case.  Consequently, we are bound to

enforce the statute as written.

	Defendant, however, citing to Tolliver, 147 Ill. 2d 397, and DePalma, 256 Ill. App. 3d 206, insists that a conviction under section 4--103(a)(6) of the

Vehicle Code requires the State to prove more than mere knowledge; it requires

the State to prove knowledge that the report was false plus criminal purpose. 

However, both Tolliver and DePalma are distinguishable from the facts of this case.

	In Tolliver, 147 Ill. 2d 397, the defendant was charged with possession of title without complete assignment.  Ill. Rev. Stat. 1989, ch. 951⁄2, par. 4--

104(a)(2).  The defendant filed a motion to dismiss, claiming that the statute

was unconstitutional.  The statute at issue in Tolliver did not include a particular mental state.  However, the supreme court noted that in People v. Gean, 143 Ill. 2d 281 (1991), it held that, because the statute does not create an absolute liability offense, it would read into the statute the mental state

of knowledge.  Tolliver, 147 Ill. 2d at 400.  Elaborating on Gean, the supreme court in Tolliver determined that the "knowledge" required for a conviction under section 4--104 of the Vehicle Code must be expanded to include "criminal

knowledge" or "knowledge plus criminal purpose."  Tolliver, 147 Ill. 2d at 400, 403.  The court explained that there are many situations in which a person could

knowingly possess an incomplete title for entirely innocent reasons, yet be

punished as a felon despite the lack of a criminal intent.  Tolliver, 147 Ill. 2d at 401-02. 

	In DePalma, the defendant was convicted of possession of a vehicle with knowledge that the VIN had been removed.  The statute under which the defendant

was convicted made it a felony 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. 951⁄2, par. 4--

103(a)(4).  On appeal, the defendant challenged the constitutionality of section

4--103(a)(4), arguing, inter alia, that the statute criminalizes innocent conduct.

	Although we ultimately reversed defendant's conviction, we did not find

section 4--103(a)(4) of the Vehicle Code unconstitutional for criminalizing

innocent conduct.  DePalma, 256 Ill. 2d at 214.  Rather, relying on Tolliver, we found the statute constitutional, concluding that the knowledge requirement of

section 4--103(a)(4) must be read to mean "criminal knowledge."  DePalma, 256 Ill. App. 3d at 211.  We also noted that chapter 4 of the Code was implemented

" ' "to protect automobile owners against theft and to protect the general public

against the commission of crimes involving stolen automobiles." ' "  DePalma, 256 Ill. App. 3d at 209, quoting People v. Morris, 136 Ill. 2d 157, 162 (1990), quoting People v. One 1979 Pontiac Grand Prix Automobile, 89 Ill. 2d 506, 510 (1982).  We reasoned that a contrary result would abrogate the legislative purpose of the statute by punishing a person with no criminal purpose who came

into possession of a vehicle without a VIN.  DePalma, 256 Ill. App. 3d at 212.

	The statutes at issue in both Tolliver and DePalma permitted a defendant to be found guilty of passive conduct, i.e., mere knowing possession.  See People v. Mayhall, 291 Ill. App. 3d 650, 654 (1997) (recognizing that Tolliver and DePalma involved offenses based solely on a person's possession of an improper item).  Indeed, both courts cited several situations under which innocent persons

could be convicted for conduct lacking any criminal intent.  See Tolliver, 147 Ill. 2d at 401-02; DePalma, 256 Ill. App. 3d at 212.  In contrast, a violation of section 4--103(a)(6) involves affirmative conduct, and unlike the courts in Tolliver and DePalma, we cannot envision any scenario under which the statute would punish innocent conduct.  In addition, defendant has not suggested such a

scenario.

	Moreover, we note that Tolliver is distinguishable on an entirely separate basis.  As it noted in Wright, the supreme court was able to imply the mental state of knowledge plus criminal purpose in that case because the statute lacked

any mental state and the legislature did not intend to create an absolute

liability offense.  Wright, 194 Ill. 2d at 29.  As we previously discussed, the legislature supplied the mental state of "knowledge" for a violation of section

4--103(a)(6).

	We now turn to the second part of defendant's argument.  Defendant contends

that applying the "criminal knowledge" standard to this case leads to the

conclusion that he was not proved guilty beyond a reasonable doubt of making a

false report of a vehicle theft.  However, because we have already rejected

defendant's contention that a mental state of "criminal knowledge" applies to

section 4--103(a)(6) of the Vehicle Code, we confine our analysis to whether the

State proved that defendant knowingly made a false report of a vehicle theft.

	Defendant does not dispute that he never owned or had possession of the car

described in the indictment.  Rather, he maintains that he owned a different

Corvette with the same description, one which his witnesses identified as being

in his possession.  He points out that the State attempted to connect him with

the instant offense through the Corvette's VIN.  However, defendant claims that

he never supplied the police with a VIN.  Instead, the police discovered the VIN

by running a computer search of the license plate number provided by defendant. 

Consequently, defendant reasons that he was convicted not of providing false

information to the police but of somehow knowing that the information added to

his report by the police was false.

	In reviewing the sufficiency of the evidence to support a conviction, the

proper inquiry is whether the evidence, when viewed in a light most favorable to

the prosecution, is such that any rational trier of fact could have found all the

essential elements of the offense beyond a reasonable doubt.  Wright, 194 Ill. 2d at  19.  Section 4--103(a)(6) of the Vehicle Code makes it unlawful for "[a]

person to knowingly make a false report of the theft *** of a vehicle to any

police officer of this State."  625 ILCS 5/4--103 (West 1996).  Defendant

suggests that, under the facts in this case, there are only two situations in which a report of a vehicle theft would be false: (1) the vehicle he reported stolen was never actually stolen, i.e., he still possessed the vehicle; or (2) he never owned the vehicle.  Defendant notes that there was no evidence that he retained the vehicle, and he insists that he owned a vehicle fitting the

description of the Corvette he reported stolen.  However, we  conclude that the

evidence presented at trial was sufficient to prove that defendant never owned

the Corvette he reported stolen.  Thus, we find that the State proved defendant

guilty beyond a reasonable doubt of making a false report of a vehicle theft.

	At trial, the State proffered evidence regarding defendant's claim that he

owned a 1991 white-topped, red Corvette convertible that was stolen.  Defendant

provided Officer Young with a physical description of the vehicle and the

vehicle's license plate number.  Using the license plate number, Young was able

to run a computer search to locate the Corvette's VIN.  Law enforcement officials

subsequently learned that the Corvette in question was in the possession of

Robert Spurling.

	The State also presented substantial evidence regarding the Corvette's

chain of title.  This evidence suggested that defendant never owned the Corvette

that he claimed was stolen from his possession.

	Stancey testified that he purchased the Corvette in April 1994 from

Hinsdale Motor Cars and financed the vehicle through LaSalle Northwest Bank. 

According to the vehicle's bill of sale, its VIN was 1G1YY3385M5109151.  Stancey

made his last car payment in April 1997 but never received a title.  In May 1997,

Stancey placed the vehicle for sale with D&M.  D&M sold the car to Robert

Spurling in September 1997.  Spurling testified that he still owned the

automobile and possessed a duplicate title.  Thus, the State established that

Spurling was the legal owner of the Corvette at the time defendant reported the

car stolen.

	In addition, the State presented testimony that the title allegedly

assigned to defendant from the Stanceys was fraudulent.  Officer Plohm ordered

a chain of title for the Corvette.  Plohm noted that on the back of the

certificate of title issued to the Stanceys was an assignment to defendant. 

However, Stancey testified that the signatures did not belong to him or his wife

and that the mileage indicated on the assignment of title was incorrect.  A

certificate of title in the name of Roderick Owens was issued in June 1997. 

Plohm testified that each of the certificates of title was for the same vehicle

and listed the same VIN.

	Plohm then sought the assistance of Stancey and Owens regarding the chain

of title.  Stancey cooperated with Plohm's investigation.  However, Plohm

testified that the address defendant listed on the certificate of title did not

exist and that he was not able to contact defendant at an Aurora address that

defendant had provided on one of the title documents.  Plohm then inspected

Stancey's Corvette and concluded that the vehicle bore an original, unaltered

vehicle tag.

	Based on this evidence, the trial court could properly conclude that

defendant knew the report he made was false because he claimed ownership of a

vehicle he never owned.

	Defendant claims that, while he did not have the car with the VIN

identified in the indictment, he did have a car of the same physical description. 

He insists that because he did not provide police with a VIN the evidence was

insufficient to support his conviction.  We disagree.  Although defendant did not

provide police with the Corvette's VIN, he did provided police with a license

plate number.  As we discussed above, the police were able to use the license

plate number to locate the Corvette's VIN and to connect defendant to the

offense.  The only way to find defendant's theory credible is to believe that,

although defendant gave police the wrong license plate number, the license plate

number defendant provided miraculously belonged to a vehicle of the same make,

the same year, the same color, and the same style.  We believe that the trial

court was justified in declining to so conclude.

	Defendant also cites the uncontradicted testimony of his mother and

grandmother in support of his theory that he owned a 1991 red Corvette

convertible.  However, the testimony from these two witnesses, especially

defendant's grandmother, was vague.  We note that it is the function of the trier

of fact to assess the credibility of the witnesses and to determine the weight

to be given their testimony.  People v. Carini, 254 Ill. App. 3d 1, 12 (1993).  Further, the trier of fact is not required to accept the testimony of a defense

witness even if it is uncontradicted.  Carini, 254 Ill. App. 3d at 12; People v. Kane, 136 Ill. App. 3d 1030, 1034 (1985) (noting that the trier of fact is not required to accept the testimony of a defense witness on faith alone).  In light of the other testimony and evidence presented by the State, the court was free

to reject the testimony of defendant's mother and grandmother.

B.  Restitution

	Defendant also argues that the portion of the court order requiring him to

pay restitution should be reversed.  Defendant presents three reasons in support

of his argument.  First, he asserts that the restitution order was premature

because the court failed to hold the statutorily required hearing regarding

defendant's ability to pay restitution.  See 730 ILCS 5/5--5--6 (West 1996). 

Second, defendant argues that the trial court erred in imposing the restitution

order based on charges that were unrelated to the sole charge of which he was

convicted.  Third, defendant contends that, because American Ambassador was not

a victim of the offense of which he was convicted, it was not a proper entity to

receive restitution.

	The State concedes that a sentence for restitution may not be imposed under

section 5--5--6 of the Unified Code of Corrections (Unified Code) (730 ILCS 5/5--

5--6 (West 1996)) for offenses under the Vehicle Code.  See People v. Hasprey,  194 Ill. 2d 84 (2000).  However, relying in part on language in Hasprey, the State contends that a restitution order could be imposed under section 4--108(b)

of the Vehicle Code (625 ILCS 5/4--108(b) (West 1996)).

	In this case it is unclear whether the trial court imposed its restitution

order under section 5--5--6 of the Unified Code or under section 4--108(b) of the

Vehicle Code.  The distinction is irrelevant for our purposes, however, since we

find that, under the facts of this case, the trial court could not impose the

order of restitution under either statutory provision.

	In Hasprey, 194 Ill. 2d 84, the defendant was convicted of reckless driving (625 ILCS 5/11--503 (West 1998)), sentenced to probation, and ordered to pay a

fine, costs, and restitution.  On appeal, our supreme court held that section 5--

5--6 of the Unified Code authorizes restitution only for violations of the

Criminal Code.  Hasprey, 194 Ill. 2d at 86.  Accordingly, the court vacated the trial court's restitution order, which was premised on the defendant's conviction

under the Vehicle Code.  Hasprey, 194 Ill. 2d at 86.  Thus, pursuant to Hasprey, defendant, who was convicted of an offense under the Vehicle Code, could not be

ordered to pay restitution under section 5--5--6 of the Unified Code.

	Moreover, we point out that, while a conviction for insurance fraud (720

ILCS 5/46--1 (West 1996)) is a violation under the Criminal Code, defendant was

acquitted of that charge.  It is well established that a court may not impose

restitution for charges upon which a defendant is acquitted.  See People v. Mahle, 57 Ill. 2d 279, 284 (1974); People v. Hernandez, 236 Ill. App. 3d 983 (1992); People v. Chapin, 233 Ill. App. 3d 28 (1992).  Thus, the trial court could not order defendant to pay restitution under section 5--5--6 of the Unified

Code based on the insurance fraud charge.

	In its decision, the Hasprey court mentioned that the Vehicle Code has its own "restitution provision" for those convicted of vehicle theft (see 625 ILCS

5/4--108 (West 1996)).  Hasprey, 194 Ill. 2d at 86.  The State seizes upon this language to argue that the trial court could impose a sentence of restitution

pursuant to section 4--108 of the Vehicle Code.  That section provides in pertinent part:

		"(b) Any person who is convicted of any offense under Chapter 4 of

this Act, in addition to any other fines or penalties provided therein,

may be required to compensate the victim, if known, involved in the

related offense, for any loss that the victim sustains to his person or

property.

		(c) The amount and method of payment of the compensation award shall

be determined at the time of the conviction.

		(d) For purposes of this Section, 'victim' shall mean the owner or

other legally entitled person."  625 ILCS 5/4--108 (West 1996).

The State argues that section 4--108 is applicable here because defendant was

convicted of a violation of chapter 4 of the Vehicle Code.  Further, the State

contends that American Ambassador is a victim in this case because it incurred

a loss in paying defendant $19,468 to settle his claim.

	Our research discloses only one case that analyzes section 4--108.  In

People v. Fox, 298 Ill. App. 3d 926 (1998), the defendant was convicted of possession of a stolen motor vehicle (625 ILCS 5/4--103(a)(1) (West 1996)), a

violation of the Vehicle Code.  The trial court imposed a sentence that included

$500 in restitution.  On appeal, the defendant argued that a sentence of

restitution under section 5--5--6 of the Unified Code could not be imposed for

the conviction of an offense under the Vehicle Code.  In a case that predates

Hasprey, the Fox court noted that the plain language of section 5--5--6 of the Unified Code authorizes a sentence of restitution only for violations of the

Criminal Code.  Fox, 298 Ill. App. 3d at 929.

	In Fox, the State also urged the appellate court to uphold the defendant's sentence of restitution under section 4--108 of the Vehicle Code.  The State

insisted that, although the trial court characterized its award as one for

"restitution," rather than for "compensation" as provided for in section 4--108

of the Vehicle Code, the distinction was irrelevant.  However, the court rejected

the State's claim, concluding that adopting the State's position would require

it to "interchange two distinct sets of laws *** and two separate statutory

penalty provisions *** and, thereby, permit, by judicial decision, the very acts

that the legislature codified separately."  Fox, 298 Ill. App. 3d at 930-31.  In addition, the court noted that there was no support in the record for the amount

of damages imposed by the trial court.  Fox, 298 Ill. App. 3d at 931.

	The State argues that the validity of the Fox holding is questionable in light of the Hasprey court's statement that the Vehicle Code has its own "restitution provision" for those convicted of vehicle theft (see 625 ILCS 5/4--

108(b) (West 1998)).  The Hasprey court's statement constitutes dicta.  More importantly, however, the supreme court did not analyze section 4--108(b) because

the defendant was convicted of reckless driving.  See Hasprey, 194 Ill. 2d at 86.

	Moreover, although defendant was charged with a violation of the Vehicle

Code, we believe that under the facts of this case, the trial court could not

order defendant to pay restitution to American Ambassador under section 4--108

of the Vehicle Code.  The State's contention that American Ambassador is the

victim in this case because it paid defendant $19,468 to settle his claim is

unpersuasive.  In acquitting defendant of the insurance-fraud charge, the court

specifically found that the State failed to present sufficient evidence to

establish that charge beyond a reasonable doubt.  At the time of the acquittal,

the court noted that there was no direct testimony that defendant was the

individual who submitted the affidavit of automobile total theft to American

Ambassador or that defendant had received the settlement check of $19,468. 

Although defendant later admitted submitting the affidavit, and American

Ambassador may have been defrauded of $19,468 as a result of the acquittal, there

was no basis in the record for the court to hold defendant responsible for this

misconduct.  Accordingly, we hold that, under the facts of this case, the trial

court could not impose a sentence of restitution under section 4--108(b) of the

Vehicle Code.

III.  CONCLUSION

	For the aforementioned reasons, we affirm defendant's conviction but vacate

that portion of the sentencing order requiring defendant to pay American

Ambassador $19,468 in restitution. 

	Affirmed; restitution order vacated.

	McLAREN and GEIGER, JJ., concur.