People v. Blitstein, 1-88-0953

• Citation: 192 Ill.App.3d 281,139 Ill.Dec. 279,548 N.E.2d 664
• Decision Date: 15 December 1989
• Docket Number: No. 1-88-0953,1-88-0953
• Parties: , 139 Ill.Dec. 279 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Neil BLITSTEIN, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 664

548 N.E.2d 664 192 Ill.App.3d 281, 139 Ill.Dec. 279 The PEOPLE of the State of Illinois, Plaintiff-Appellee,
v.
Neil BLITSTEIN, Defendant-Appellant. No. 1-88-0953. Appellate Court of Illinois,
First District, Sixth Division. Dec. 15, 1989.

John Thomas Moran, Jr. and Mitchell C. Ex, Chicago, for defendant-appellant.

Cecil A. Partee, State's Atty., Chicago, for plaintiff-appellee (Inge Fryklund and Bonnie Meyer Sloan, of counsel.)

Justice McNAMARA delivered the opinion of the court:

Defendant, Neil Blitstein, was convicted of theft by deception following a trial without a jury. The trial court sentenced defendant to two years probation. On appeal, defendant contends that he was not proved guilty beyond a reasonable doubt, and that the three year statute of limitations had run when the State filed its indictment. Although[192 Ill.App.3d 282] we find that the statute of limitation issue is dispositive of the appeal, we shall set forth the facts in some detail.

On March 21, 1986, defendant was indicted by a grand jury for the continuing theft of checks belonging to Scrap Corporation of America (SCA). The indictment alleged that defendant "obtained by deception control over property, to wit: checks or orders for the payment of money of an amount in excess of $300 * * * intending to permanently deprive the owner of the use and benefit of said property * * *." The indictment stated further that the offense was "one of a series of such offenses performed at different times * * * and for which period of limitations prescribed by chapter 38, section 3-8, begins at the time when the last such act is committed, to wit: on or about March 22, 1983 * * *."

Page 665

[139 Ill.Dec. 280] On May 2, 1986, defendant requested a bill of particulars. The State answered that it had tendered the 91 checks which created the $101,000 figure charged in the indictment. The court found this was sufficient answer to defendant's request.

On September 30, 1986, defendant filed a motion to dismiss based on the statute of limitations. Defendant argued that the last "overt act" of the continuing theft was March 16, 1983, the date of the last alleged nondelivery of goods, or on March 18, 1983, the date of the check issued by SCA to defendant's company. The State maintained that the last overt act occurred on March 30, 1983. The court denied the motion to dismiss, relying on the fact that defendant's bank stamped the check on March 22, and SCA's bank paid the check on March 23, thereby falling short of the statute of limitations by one and two days, respectively.

At trial, it was established that defendant worked for SCA, which was in the business of buying steel scrap, as a yard foreman from 1980 until March 30, 1983. At the same time, defendant owned two businesses, Bartco and U.S. Tank, which provided steel scrap to scrap companies. In 1981, Bartco began selling scrap to SCA. In 1982, U.S. Tank began selling scrap to SCA. During 1981, 1982 and 1983, SCA had paid out 91 checks to Bartco and U.S. Tank, for a total of $101,988.21.

The method of delivery of scrap and payment therefor was established at trial as the key to the alleged fraud. When a truckload of scrap entered the SCA yard, it was weighed at a scale by the scalemaster, whose work station overlooked the scale platform. An instrument printed the weight on a receiving ticket, which was time stamped by the scalemaster. The truck left the scale. The scrap on the truck was inspected by a yard inspector or foreman, who completed [192 Ill.App.3d 283] an inspection ticket and had the truck unloaded. The empty truck was then reweighed. The scalemaster recorded the second weight, timestamped the ticket, and recorded the load's receipt in a purchase log. The yardmaster or his assistant made out a check for the delivery.

James Sargent, SCA's manager of trucking, testified for the State that on March 30, 1983, he arrived at work at 5:00 a.m. His second floor office overlooked the truck scale. At 5:45 a.m., Sargent heard defendant arrive in his first floor office. No one else was present. Patrick Tang, SCA's general manager, had instructed Sargent to watch to see if trucks weighed on the scale corresponded with receiving tickets. Sargent heard defendant go upstairs, and he then twice heard the...