Boren v. State, CR

• Decision Date: 05 December 1988
• Docket Number: No. CR,CR
• Citation: 761 S.W.2d 885,297 Ark. 220
• Parties: Bill BOREN, Jr., Appellant, v. STATE of Arkansas, Appellee. 88-37.
• Court: Arkansas Supreme Court

Page 885

761 S.W.2d 885

297 Ark. 220

Bill BOREN, Jr., Appellant, v. STATE of Arkansas, Appellee.

No. CR 88-37.

Supreme Court of Arkansas.

Dec. 5, 1988.

Joel W. Price, Fort Smith, for appellant.

J. Blake Hendrix, Asst. Atty. Gen., Little Rock, for appellee.

HAYS, Justice.

In this case, Bill Boren, Jr., appeals a conviction under Ark.Code Ann. § 4-90-204(d) (1987), failure to disclose the alteration of an odometer on a vehicle offered for sale. He has raised two issues on appeal, neither of which has merit.

Bill Boren, Jr. was operating a used car dealership under the name Boren Motor Company. The police received an anonymous tip that there had been some odometer "rollbacks" on cars connected to that dealership. Further investigations were conducted resulting in appellant being charged with four counts of tampering with odometers, Ark.Code Ann. § 4-90-204 (1987) [Ark.Stat.Ann. § 75-2402(4)(1979) ].

On May 20, 1987, a jury trial was held in the Circuit Court of Crawford County, Arkansas. When the state rested its case, appellant moved for a directed verdict based on the state's failure to prove knowledge of alteration. The motion was denied and at the close of the appellant's case the motion was renewed and again denied. The jury returned a verdict of guilty on all four counts and imposed a fine of $1,000 on each count and additionally, a term of one year on count two.

I

On appeal, Boren first assigns error to the trial court's denial of his motion for a directed verdict. A motion for a directed verdict is a challenge to the sufficiency of the evidence, not to the nature or character of the evidence, and is proper only when no issue of fact exists. On review, we consider the evidence in the light most favorable to the appellee and affirm if there is any substantial evidence to support the verdict. Only testimony in support of the verdict need be considered. David v. State, 286 Ark. 205, 691 S.W.2d 133 (1985). Our responsibility is to determine whether the verdict is supported by substantial evidence, that is, whether the jury could have reached its conclusion without having to resort to speculation or conjecture. Boone v. State, 282 Ark. 274, 668 S.W.2d 17 (1984). We do not judge the credibility of witnesses, but instead weigh the evidence in the light most favorable to the appellee to see if there is substantial evidence to support the verdict. Thompson v. State, 284 Ark. 403, 682 S.W.2d 742 (1985). Viewing the evidence in that light, we find the trial court's denial of the directed verdict was proper.

Appellant was prosecuted under Ark.Code Ann. § 4-90-204 (1987), which reads in part:

(d) No person shall sell or offer for sale any motor vehicle with knowledge that the mileage registered on the odometer has been altered so as to reflect a lower mileage than the motor vehicle has actually been driven without disclosing such fact to prospective buyers.

We have not had occasion to interpret our odometer act, Ark.Code Ann. § 4-90-201 (1987) et seq., so we have looked for authority from cases under the federal act, 15 U.S.C.A. § 1981 (1982) et seq., which is very similar to the Arkansas act, and to acts in other states. For the state to prove its case against appellant under § 4-90-204(d) (1987), it was necessary to show that appellant had knowledge that the mileage registered on the odometers had been altered so as to reflect a lower mileage, and that he failed to disclose this fact to prospective buyers. ¹

To prove an alteration of an odometer was done with knowledge and, therefore, intentionally it has generally been held that if it is shown that the alteration took place while the automobile was under the dominion and control of the defendant or his agents the evidence is sufficient. United States v. Hugh Chalmers Chevrolet-Toyota, Inc., 800 F.2d 737 (8th Cir.1986); State v. Kennedy, 224 N.W.2d 223 (Iowa 1974); State v. Biter, 49 Del. 503, 119 A.2d 894 (1955); and see United States v. Studna, 713 F.2d 416 (8th Cir.1983), where the evidence on this point was not challenged, but the court noted that on the odometer rollback charge the state had shown that the odometer had been rolled back during the time the cars had been owned by the defendant and that this evidence was overwhelming.

Evidence of alteration is often circumstantial; usually alteration is shown by contrasting the higher odometer reading prior to the sale to the defendant and the lower reading at the time the defendant sells the vehicle to a customer. 1 Am.Jur.2d, Proof of Facts § 6 (1974); Billings, Handling Automobile Warranty and Repossession Cases, § 8.24 (1984). Proof of the earlier higher reading has come from testimony of a previous owner, applications for certificates of title on file in the motor vehicle department, testimony of a mechanic or service manager who recorded the mileage on a repair order, or any official records citing the vehicle's odometer reading. 1 Am.Jur.2d, Proof of Facts supra; Billings, supra; and see generally, Annotation Unlawful Tampering with Odometer, 76 A.L.R.3d 981 (1977).

Here the state presented sufficient evidence to show the automobiles were under the dominion and control of appellant during the time the alteration took place. The state presented evidence regarding the four different cars that were purchased, which essentially related the sales transaction and the odometer reading on each car at the time of purchase. This testimony clearly established, with no dispute from appellant, what the lower reading was at the time of sale to appellant's customers.

The state also presented sufficient evidence to show the cars were under the control of the appellant at the time the vehicles showed a higher reading on the odometer. The four vehicles in question had been purchased from the 166 Auto Auction. Mary Jo Henson, the office manager of the auction presented invoices for each of the four cars. Each invoice identified the car and indicated the mileage registered on the odometer at the time it was auctioned. In each case, there was a difference ranging from 25,000 to 45,000 miles on the readings at the time of auction and the later sale by the appellant. The name of the buyer on each invoice was Boren Motor Company. The state also introduced a privilege license purchased by appellant, showing that Bill Boren, Jr. was authorized to operate under the name Boren Motor Company.

Appellant concedes he operated as Boren Motor Company, but contends the identity of the auction buyer was inconclusive, as there was other evidence showing the cars had been purchased by Boren Wholesale Motors, a concern allegedly owned by his father, Bill Boren, Sr. Appellant refers us to a computer printout attached to each invoice, showing the buyer of each car was Boren Wholesale Motors and to testimony by Ms. Henson that both appellant and his father had been buyers at the auction in the past, and that she had no information as to the buyer on this occasion other than her records.

We are not persuaded by appellant's argument. Ms. Henson said when questioned further about the discrepancy between the invoice and the printout, that the invoices were made out first while the printouts were made out later by different clerks. At that point she indicated there was less formality and less concern with the preciseness of the information: "Sometimes it's just in a man's name; it may not be in his company name, but it just may be made in his name." From the evidence presented, it is a permissible inference that appellant had made the purchase as shown on the invoice, and because of the informality of further record keeping, a similarly named company was shown as the buyer on the printout. It is the jury's sole prerogative to evaluate the conflicting evidence and to draw its own inferences, Williams v. State, 17 Ark.App. 53, 702 S.W.2d 825 (1986), and the jury may draw any reasonable inference from the evidence presented, Upton v. State, 257 Ark. 424, 516 S.W.2d 904 (1974). We find there was sufficient evidence to show appellant's dominion and control over the vehicles during the time that the alteration of the odometers took place.

In addition to knowledge of the alterations, it was necessary for the state to show the vehicles were sold by appellant, without disclosing to the purchasers the alterations and the resultant lower mileage. The purchasers of the cars testified that while appellant had given them a completed disclosure form, there was no other attempt by him to disclose the alteration. In fact, he gave verbal reassurances to two of the customers that the odometers were correct to the best of his knowledge. The disclosure form, however, far from disclosing any alterations, indicated the opposite and there is no way we can find from the form that appellant had disclosed the required information.

Appellant had checked two statements on the disclosure form. The first read: "I hereby certify that the odometer of said vehicle was not altered, set back, or disconnected while in my possession, and I have no knowledge of anyone else doing so." This statement is clearly the antithesis of disclosing that there had been an alteration of the odometer.

The second statement checked by appellant stated: "I certify that to the best of my knowledge, the odometer reading as stated above is not the actual mileage of the vehicle described below and should not be relied upon." Even considering this statement standing on its own, appellant has not given the required disclosure. This statement does not reveal that the reading is actually lower than what has been driven, but only that it is inaccurate. To merely say that the mileage is inaccurate is an ambiguous statement at best and could refer to any number of circumstances. It certainly does not equate to a disclosure that the odometer has been altered so as to reflect a lower mileage than the car has actually been driven. The statement not only misstates the facts as appellant...