People v. Lambert

Decision Date15 March 1990
Docket NumberNo. 4-89-0358,4-89-0358
Citation195 Ill.App.3d 314,141 Ill.Dec. 932,552 N.E.2d 300
Parties, 141 Ill.Dec. 932 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. David N. LAMBERT, Defendant-Appellant.
CourtUnited States Appellate Court of Illinois

Kevin P. Fitzgerald, Thomson & Weintraub, Bloomington, for defendant-appellant.

Neil F. Hartigan, Atty. Gen., Springfield, Robert J. Ruiz, Sol. Gen., Terence M. Madsen, Asst. Atty. Gen., Nathan P. Maddox, Deputy Chief, Criminal Appeals Div., for plaintiff-appellee.

Justice STEIGMANN delivered the opinion of the court.

After a jury trial, defendant was convicted of various counts of theft by deception and criminal breach of fiduciary duty. The trial court sentenced defendant to an eight-year extended term on each theft by deception conviction. No sentence was imposed on the criminal breach of fiduciary duty counts upon a finding they merged with the theft by deception convictions. Defendant appeals his convictions and sentence.

Defendant was originally charged by indictment with 31 separate counts of theft by deception, criminal breach of fiduciary duty, and unlicensed insurance production. (Ill.Rev.Stat.1987, ch. 38, par. 16-1(b)(1); Ill.Rev.Stat.1987, ch. 73, pars. 1065.55-1, 1065.39-2(c).) All counts related to certain checks defendant received from several individuals.

Prior to trial, one count was severed and 10 others were dismissed on motion of the State. Of the remaining 20 counts which went to the jury, 16 involved 8 transactions between defendant and Lois A. Bradley. As to each transaction defendant was charged, alternatively, with one count of theft by deception and one count of criminal breach of fiduciary duty. The final four counts charged theft by deception as to four additional transactions involving Hilda Fehr and Alphonse and Dorothy Boucher.

The jury returned guilty verdicts on 18 of the 20 counts, acquitting defendant on both counts related to one of the transactions involving Lois A. Bradley. At sentencing, at the State's suggestion, the court found defendant's convictions from criminal breach of fiduciary duty merged with the convictions for theft by deception. Thereafter, the court imposed an eight-year extended-term sentence on each of the 11 convictions for theft by deception, with each sentence to be served concurrently. The court further ordered restitution of $57,919.20, less any amount shown to have been repaid.

I. MOTION TO DISMISS FOR IMPROPER VENUE

Prior to trial, defendant filed a motion to dismiss for improper venue in McLean County. That motion was directed to all 14 counts which charged him with criminal breach of fiduciary duty and unlicensed insurance production. Five counts relating to unlicensed insurance production were dismissed on motion of the State and the sixth count was severed. The court denied defendant's motion to dismiss the remaining eight counts of criminal breach of fiduciary duty. Defendant was convicted of seven of those counts.

On appeal, defendant argues that the trial court erred in denying his motion to dismiss for improper venue, maintaining that because he received the checks in question from Lois A. Bradley in Piatt County, Illinois, venue for those offenses did not lie in McLean County, Illinois. The State argues that venue was proper in McLean County.

Section 508.1 of the Illinois Insurance Code states in pertinent part:

"Any money which an insurance producer * * * receives for soliciting, negotiating, effecting, procuring, renewing, continuing or binding policies of insurance shall be held in a fiduciary capacity, and shall not be misappropriated, converted or improperly withheld.

* * * * * *

* * * When an insurance producer * * * knowingly misappropriates or converts to his own use or illegally withholds premiums in excess of $150, he is guilty of a Class 3 felony." (Ill.Rev.Stat.1987, ch. 73, par. 1065.55-1.)

Thus, under this statute, a defendant is guilty of criminal breach of fiduciary duty when he knowingly misappropriates or converts to his own use or illegally withholds fiduciary monies.

"Conversion" is defined as "[t]he unauthorized exercise of dominion or control over someone's personal property." West's Legal Thesaurus/Dictionary 186 (1986).

Section 1-6(a) of the Criminal Code of 1961 states:

"Criminal actions shall be tried in the county where the offense was committed." Ill.Rev.Stat.1987, ch. 38, par. 1-6(a).

In the present case, defendant was specifically charged with knowingly converting to his own use fiduciary monies represented by the various checks in question. Extensive evidence presented at trial showed that the conversion of the fiduciary monies took place upon defendant's depositing the checks into a checking account at Champion Federal Savings and Loan in Bloomington, Illinois, located in McLean County, Illinois, and upon defendant's writing checks from that account to himself and to cash. Venue is proper in any county where any element of the offense being tried was committed. (See People v. Brown (1982), 107 Ill.App.3d 742, 744, 63 Ill.Dec. 512, 514, 438 N.E.2d 250, 252.) Because an element of the offense of criminal breach of fiduciary duty was committed in McLean County, venue was proper in that county.

II. DEFENDANT'S CONVICTIONS FOR CRIMINAL BREACH OF FIDUCIARY DUTY

For each of the seven checks issued by Lois A. Bradley, defendant was charged with both theft by deception and criminal breach of fiduciary duty. Defendant argues it was improper for the trial court to convict him of more than one offense relative to each check because each taking of a check constituted a single act. In support of his argument, defendant cites People v. King (1977), 66 Ill.2d 551, 6 Ill.Dec. 891, 363 N.E.2d 838, and People v. Kaye (1987), 154 Ill.App.3d 562, 107 Ill.Dec. 348, 507 N.E.2d 12. Under King and Kaye, defendant maintains each count alleging criminal breach of fiduciary duty set forth the same physical act and transaction alleged in the corresponding count of theft by deception and, therefore, both convictions cannot stand. Because defendant was acquitted of two charges involving one of the Bradley transactions, defendant's argument is irrelevant insofar as those counts are concerned.

The Illinois Supreme Court held in King that when the same physical act of the accused constitutes two or more offenses, it is proper to enter judgment of conviction and sentence only on the most serious offense. In its opinion, the court stated:

"Prejudice results to the defendant only in those instances where more than one offense is carved from the same physical act. Prejudice, with regard to multiple acts, exists only when the defendant is convicted of more than one offense, some of which are, by definition, lesser included offenses. Multiple convictions and concurrent sentences should be permitted in all other cases where a defendant has committed several acts, despite the interrelationship of those acts. Act, when used in this sense, is intended to mean any overt or outward manifestation which will support a different offense. We hold, therefore, that when more than one offense arises from a series of incidental or closely related acts and the offenses are not, by definition, lesser included offenses, convictions with concurrent sentences can be entered." King, 66 Ill.2d at 566, 6 Ill.Dec. at 897-98, 363 N.E.2d at 844-45.

In Kaye, the court found three out of six bribery charges to be predicated on a different physical act--the solicitation of money rather than the receipt of money--from the theft by deception charge which involved the receipt of money. In affirming the defendant's conviction for these counts, the court distinguished the charges and found the act of soliciting to precede the act of receiving. Kaye, 154 Ill.App.3d at 573, 107 Ill.Dec. at 355, 507 N.E.2d at 19.

Based upon the foregoing analysis, a comparison of requisite elements of theft by deception and criminal breach of fiduciary duty is necessary. A person commits theft by deception when he knowingly obtains by deception control over property of the owner and intends to deprive the owner permanently of the use of benefit of the property. (Ill.Rev.Stat., 1988 Supp., ch. 38, par. 16-1(a)(2)(A); Kaye, 154 Ill.App.3d at 571, 107 Ill.Dec. at 354, 507 N.E.2d at 18.) A person commits criminal breach of fiduciary duty when he knowingly misappropriates or converts to his own use or illegally withholds fiduciary monies. Ill.Rev.Stat.1987, ch. 73, par. 1065.55-1.

In the present case, theft by deception and criminal breach of fiduciary duty were predicated on separate criminal acts, and each of these charges is supported by the record. First, the act of conversion of fiduciary monies is distinguishable from the act of receiving another's property by deception. Second, neither of the crimes is an included offense of the other. And third, the trial court specifically held in its judgment and sentence order that the criminal breach of fiduciary duty convictions were merged with the theft by deception convictions. As the court stated in King, "when more than one offense arises from a series of incidental or closely related acts and the offenses are not, by definition, lesser included offenses, convictions with concurrent sentences can be entered." King, 66 Ill.2d at 566, 6 Ill.Dec. at 898, 363 N.E.2d at 845.

III. SUFFICIENCY OF THE EVIDENCE

Defendant next contends that the evidence is insufficient to prove him guilty beyond a reasonable doubt. In support of his argument, defendant argues that every reasonable hypothesis of his innocence must be excluded to sustain a conviction. People v. Evans (1981), 87 Ill.2d 77, 83, 57 Ill.Dec. 622, 624-25, 429 N.E.2d 520, 522-23.

Recently, however, in People v. Eyler (1989), 133 Ill.2d 173, 191, 139 Ill.Dec. 756, 764, 549 N.E.2d 268, 276, the Illinois Supreme Court set forth the standards governing review of the sufficiency of the evidence:

"[W]e have disapproved of the use of the...

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