People v. Devine

FOURTH DIVISION
March 12, 1998


No. 1-96-3971

THE PEOPLE OF THE STATE OF ILLINOIS, ) APPEAL FROM THE
) CIRCUIT COURT OF
Plaintiff-Appellee, ) COOK COUNTY.
)
v. )
)
DANIEL DEVINE, ) THE HONORABLE
) GERALD ROHRER,
Defendant-Appellant. ) JUDGE PRESIDING.

JUSTICE SOUTH delivered the opinion of the court:
Defendant, Daniel Devine, was charged with the offense of
felony theft. Following a bench trial, he was found guilty,
sentenced to 30 months probation and ordered to pay $8,778.95 in
restitution to Eugene's Fireside and Banquet Center. Defendant
appeals. We reverse and remand.
From April 1993 through September 1993, defendant worked as
a banquet manager at Eugene's Fireside and Banquet Center

located in Morton Grove, Illinois. Defendant also rented a hotel
room at Eugene's as his residence.
On September 18, 1993, defendant managed a wedding reception
for the Fousekis family. Despite Eugene's policy that such events
be paid for in advance, on the day of the Fousekis reception there
remained an unpaid balance of $7,737.50. Upon their arrival, the
bride and groom assured defendant that they would pay the balance
from cash gifts they received. After the banquet, the couple paid
defendant $7,737.50 in cash, and defendant gave Mrs. Fousekis a
receipt marked paid.
The following day, September 19, 1993, defendant managed a
fortieth anniversary brunch for the Starobinskys. The Starobinskys
owed a balance of $1,078.95. After the party, Mr. Starobinsky gave
defendant $1,078.95 in cash, and defendant gave him a receipt
marked paid.
The standard procedure at Eugene's was for defendant to
deposit the money received from the two banquets through the drop
slot of the safe located in the office of the bookkeeper, Ali
Tyburski. Defendant maintains that he followed normal operating
procedures and deposited envelopes containing the funds and related
paperwork into the drop slot of the safe. It is uncontested that
the only two people who had the combination to the safe were Ali
Tyburski and one of the co-owners of Eugene's, Elizabeth Boris.
The evidence showed that on September 20, 1993, at
approximately 5 a.m., defendant left the hotel in a taxi cab
carrying a suitcase, went to Midway Airport and boarded a plane for
Orlando to Miami Beach, Florida.
On September 20, 1993, upon arriving to work shortly after 9
a.m., Ali Tyburski was informed that defendant had not shown up for
work. Later that morning, Tyburski went to her office, opened the
safe and removed the envelopes containing cash that had been
deposited over the weekend. Tyburski discovered the money that
defendant collected from the Fousekis and Starobinsky banquets had
not been deposited into the safe.
Mrs. Boris arrived at work around noon on September 20, 1993.
Tyburski informed her that defendant had not arrived for work and
that the money from the banquets he managed over the weekend was
not in the safe. Mrs. Boris and Tyburski then went to defendant's
room, where they found his private belongings gone and small change
and horse betting receipts strewn about the room. They also found
the keys to defendant's office. Believing that defendant may have
left the money in his office, Mrs. Boris and Tyburski went to
defendant's office and checked inside his desk. The money was not
in defendant's office.
Co-owner Eugene Boris was notified of the missing money. He
called the Fousekis and the Starobinskys and asked whether they had
paid defendant. Mr. Boris was informed that defendant had been
paid the outstanding balances for the Fousekis and Starobinsky
banquets. Mr. Boris called the police and reported the money
stolen a day after it was discovered missing.
Upon defendant's return from Florida, he discovered that the
police were looking for him and went to the Morton Grove police
station, where he was arrested. Following a bench trial, defendant
was found guilty of theft.
Defendant contends he was not proven guilty beyond a
reasonable doubt and that his conviction should be reversed
because: (1) the testimony of Mr. and Mrs. Boris was impeached,
contradictory and palpably improbable; (2) the circuit court
misconstrued the evidence; (3) he was denied the right to be proved
guilty beyond a reasonable doubt and of the presumption of
innocence; (4) the prosecution failed to show that anything was
taken from a cognizable business entity; (5) the prosecution failed
to prove the unauthorized control element of theft; and (6) the
information on which he was tried was neither signed by the State's
Attorney nor supported by affidavit.
The standard of review on a challenge to the sufficiency of
the evidence in a criminal case is whether, after viewing the
evidence in the light most favorable to the prosection, any
rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt. People v. Juarez, 278 Ill.
App. 3d 286, 662 N.E.2d 567 (1996). A reviewing court should apply
this standard regardless of whether the evidence is direct or
circumstantial and should not substitute its judgment for that of
the finder of fact on questions involving the weight of the
evidence or the credibility of the witnesses. People v.
Sutherland, 155 Ill. 2d 1, 610 N.E.2d 1 (1992). A criminal
conviction will not be set aside on review unless the evidence is
so improbable or unsatisfactory that there remains a reasonable
doubt of a defendant's guilt. People v. Byron, 164 Ill. 2d 279,
647 N.E.2d 946 (1995).
The record reveals that there were several witnesses whose
collective testimonies established that on September 18 and 19,
1993, defendant collected approximately $8,816.45 in cash from the
Fousekis and Starobinsky functions; only Mrs. Boris and the
bookkeeper, Ali Tyburski, knew the combination to the safe; neither
Mrs. Boris nor Ali Tyburski entered the safe over the weekend of
September 18 and 19, 1993; on September 20, 1993, at approximately
5 a.m., without providing any prior notification, defendant left
his job and residence at Eugene's and flew to Miami Beach, Florida,
where he remained for two months; and on that same morning, the
bookkeeper, Ali Tyburski, discovered the money had not been
deposited in the safe and defendant could not be found.
Notwithstanding this evidence, as we will discuss below, the record
indicates that the circuit court applied the improper burden of
proof to defendant's case.
As to defendant's contention that Mr. and Mrs. Boris'
testimonies were impeached, contradictory and palpably improbable,
we disagree. It is within the province of the trier of fact to
determine the weight and credibility of each witness's testimony.
People v. Medeiros, 249 Ill. App. 3d 139, 618 N.E.2d 1065 (1993).
In a bench trial, as here, it is for the trial judge to determine
the credibility of witnesses, to weigh evidence, draw reasonable
inferences therefrom, and to resolve any conflicts in the evidence.
People v. Johnson, 260 Ill. App. 3d 558, 632 N.E.2d 75 (1994).
In this instance, the judge found the testimonies of the
witnesses to be credible. After hearing all the testimony and
evidence, the judge stated that defendant's "whole defense was
based on throwing enough mud at the State's witnesses ***, and yet,
there wasn't a single thing that supported [defendant's] theory
other than to defame the other witnesses." The court concluded
that "[defendant] didn't impeach them. [He] might have soiled
their reputations, but [he] didn't impeach them."
Additionally, the court considered the fact that Mrs. Boris
testified that she did not go into the safe on September 19 or 20,
1993, then later testified that she could not remember. The record
therefore does not support defendant's contention that the court
misconstrued the evidence.
Defendant further contends that the circuit court limited his
right to present a defense and improperly curtailed cross-
examination of Mr. Boris concerning his gambling and the reason he
did not have the combination to the safe; whether Mrs. Boris could
have gone into the safe had she wanted to; and Ali Tyburski's
employment history at the Rialto Tap. Initially, we note defendant
has waived this issue by failing to make offers of proof in the
circuit court. People v. Andrews, 146 Ill. 2d 413, 588 N.E.2d 1126
(1992).
Absent waiver, careful review of the record makes clear that
the court did not improperly limit defendant's right to present a
defense or cross-examine. The court's decision to restrict defense
counsel's cross-examinations to questions bearing significance to
the facts of the case and the scope of direct examination fell
within the court's discretion to control the case and limit direct
and cross-examination of witnesses. Unless the circuit court
manifestly abuses that discretion, there is no error. People v.
Biro, 260 Ill. App. 3d 1012, 636 N.E.2d 803 (1994).
Here, as the court correctly noted, the relevant inquiry of
Mr. Boris regarding the combination to the safe was whether he kept
the combination, not why he did not keep the combination.
Notwithstanding, Mr. Boris did testify that he did not keep the
combination to the safe, not because Mrs. Boris kept it from him,
but because Mrs. Boris handled the money side of the business.
Since Mr. Boris had already provided testimony as to why he did not
keep the combination to the safe, there was no abuse of discretion
in the court's excluding further inquiry regarding whether or why
Mr. Boris did not keep the safe's combination.
Moreover, the fact that Mrs. Boris could have gone into the
safe had she wanted to had already been presented and was a proper
subject for closing argument. The evidence established that Mrs.
Boris had the combination to the safe and was at Eugene's on
Sunday, September 19, 1993. Accordingly, defense counsel was not
deprived of the opportunity to present this evidence.
As to defendant's contention that the court erred in excluding
cross-examination regarding Ali Tyburski's employment history with
the Borises at the Rialto Tap, defense counsel's cross-examination
addressing that issue was properly limited to the facts relevant to
this case and the scope of direct examination. There was no abuse
of discretion by the court.
Defendant also asserts that the State failed to prove that
anything was taken from a cognizable business entity. However, Mr.
and Mrs. Boris testified that they were the owners of Eugene's
Fireside Inn and Restaurant in Morton Grove. In addition, Mrs.
Boris testified that European Investments, Ltd., is the corporation
that owns the business interest of Fireside Inn. Therefore, both
Mr. and Mrs. Boris had knowledge of Eugene's corporate ownership
and testified to that fact. Hence, defendant's assertion is
without merit.
Defendant also contends that his conviction should be reversed
because the information on which he was tried was neither signed by
the State's Attorney nor supported by affidavit as required by
section 111-3(b) of the Code of Criminal Procedure of 1963 (725
ILCS 5/111-3(b) (West 1992)). Therefore, defendant argues that the
circuit court did not have jurisdiction and the proceedings were
wholly void.
Our supreme court has held that "[a] defendant has the
fundamental right, under both the Federal (U.S. Const., amend. VI)
and State constitutions (Ill. Const. 1970, art. I, sec. 8), to be
informed of 'the nature and cause' of criminal accusations made
against him. In Illinois, this general right is given substance by
section 111-3 of the Code of Criminal Procedure of 1963 [725 ILCS
5/111-3 (West 1992)]." People v. Nash, 173 Ill. 2d 423, 428-29,
672 N.E.2d 1166 (1996), quoting People v. Smith, 99 Ill. 2d 467,
470 (1984).
Under section 111-3, the charging instrument must set forth
the nature and elements of the offense charged. 725 ILCS 5/111-
3(a)(3) (West 1992). Where the statute defining the offense
specifies the type of conduct prohibited, this requirement is
satisfied if the charging instrument states the offense in the
language of the statute. Where, however, the statute does not
define or describe the act or acts constituting the offense, a
charge couched in the language of the statute is insufficient. The
facts that constitute the crime must be specifically set forth.
People v. Hughes, 229 Ill. App. 3d 469, 592 N.E.2d 668 (1992).
To vest a court with jurisdiction in a criminal case, the
information must charge the accused with a crime. People v. Ikpoh,
242 Ill. App. 3d 365, 609 N.E.2d 1025 (1993). When a charging
instrument is challenged for the first time on appeal, the standard
is whether the charging instrument apprised the accused of the
precise offense charged with sufficient specificity so that he
could prepare a defense and plead the resulting conviction as a bar
to future prosecutions based on the same conduct. People v.
Pujoue, 61 Ill. 2d 335, 335 N.E.2d 437 (1975). As a matter of
policy, mere technical objections are to be disregarded and the
charging instrument need only state the essential elements of the
offense. People v. Wilkenson, 262 Ill. App. 3d 869, 635 N.E.2d 463
(1994).
Here, the charging instrument apprised the accused of the
precise offense charged with sufficient specificity so that he
could prepare a defense and plead the resulting conviction as a bar
to future prosecutions based on the same conduct. Moreover, the
State's evidence established the crime of theft in that it proved
what it alleged in its information: that defendant "knowingly
obtained and exerted unauthorized control over United States
currency of a value in excess of three hundred dollars, but not
more than ten thousand, the property of Eugene's Fireside Inn
permanently of the use and benefit of said property, in violation
of chapter 38, section 16-1-A(1)A of the Illinois Revised Statutes
1989 as amended."
Because mere technical objections are to be disregarded, and
the charging instrument need only state the essential elements of
the offense (Wilkenson, 262 Ill. App. 3d 869, 635 N.E.2d 463), the
fact that the information on which defendant was tried was not
signed by the State's Attorney or supported by affidavit does not
require this court to reverse defendant's conviction.
Defendant further contends that he should receive a new trial
because the court decided his guilt on the defense failure to rebut
the State's prima facie case, thereby depriving him of the
presumption of innocence and the right to have his guilt proved
beyond a reasonable doubt. For the following reasons, we agree
with defendant's contention and, on this basis alone, reverse and
remand.
The due process clauses of both the United States and the
Illinois Constitutions guarantee the accused that he will not be
convicted on proof less than reasonable doubt of every fact
necessary to constitute the crime with which he is charged. U.S.
Const., amend. XIV; Ill. Const. 1970, art. I,  2. The complement
to this guarantee is that the State bears the burden of proof and
that the accused is presumed innocent. Sullivan v. Louisiana, 508 U.S. 275, 124 L. Ed. 2d 182, 113 S. Ct. 2078 (1993).
In this case, the record reflects that the court improperly
placed on defendant a burden to rebut a prima facie case and
thereby denied defendant his constitutionally guaranteed right to
the presumption of innocence and proof beyond a reasonable doubt.
In response to defense counsel's closing argument, the court
stated: "[a]nd all the defendant has to do is establish that
there's reasonable doubt, reasonable doubt that in fact the person
is not guilty of an offense. And any type -- any kind of tie is
broken by the law, and that tie is broken in favor of the
defendant."
In addition, while entering the finding of guilt, the court
stated that "the People's prima facie case that was established by
the State had not been rebutted. It hadn't been rebutted. All I
heard were unsupported theories without anything other than that."
The circuit court's statements are incorrect statements of the
law and are inconsistent with the well-established principles that
defendant is constitutionally entitled to the presumption of
innocence and proof beyond a reasonable doubt when charged with a
violation of criminal law. Because the court did not apply these
fundamental principles to defendant's case as guaranteed by both
the United States and Illinois constitutions (U.S. Const., amend.
XIV; Ill. Const. 1970, art. I,  2), the judgment of the circuit
court is reversed and remanded.
In view of our decision on this issue, we do not address
defendant's claim that his theft conviction should be reversed
because it is predicated on his having lawfully received funds from
the Fousekis and Starobinsky functions and, therefore, he had not
obtained unauthorized control over the funds as required for a
theft conviction.
Reversed and remanded.
CERDA, P.J., and WOLFSON, J., concur.