People v. Devine

• Decision Date: 12 March 1998
• Docket Number: No. 1-96-3971,1-96-3971
• Citation: 229 Ill.Dec. 796,692 N.E.2d 785,295 Ill.App.3d 537
• Parties: , 229 Ill.Dec. 796 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Daniel DEVINE, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 785

692 N.E.2d 785

295 Ill.App.3d 537, 229 Ill.Dec. 796

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Daniel DEVINE, Defendant-Appellant.

No. 1-96-3971.

Appellate Court of Illinois First District, Fourth Division.

March 12, 1998.

Rita A. Fry, Cook County Public Defender, Chicago (Andrea Monsees, of counsel), for Defendant-Appellant.

Richard A. Devine, Cook County State's Attorney, Chicago (Renee Goldfarb, William Toffenetti, Bryan Hofeld, of counsel), for Plaintiff-Appellee.

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 prosecution, 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, 214 Ill.Dec. 1001, 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, 182 Ill.Dec. 577, 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, 207 Ill.Dec. 453, 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, 188 Ill.Dec. 495, 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, 198 Ill.Dec. 16, 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, 167 Ill.Dec. 996, 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, 201 Ill.Dec. 371, 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...