People v. Puleo

• Decision Date: 15 May 1981
• Docket Number: No. 80-1374,80-1374
• Citation: 96 Ill.App.3d 457,51 Ill.Dec. 859,421 N.E.2d 367
• Parties: , 51 Ill.Dec. 859 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Leonard A. PULEO, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 367

421 N.E.2d 367

96 Ill.App.3d 457, 51 Ill.Dec. 859

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Leonard A. PULEO, Defendant-Appellant.

No. 80-1374.

Appellate Court of Illinois, First District, Fifth Division.

May 15, 1981.

[51 Ill.Dec. 861] DiNatale & Montemurro, Chicago, for defendant-appellant; Anthony M. Montemurro, Chicago, of counsel

Bernard Carey, State's Atty., Chicago, for plaintiff-appellee; Marcia B. Orr, Joel A. Eisen-Stein and Gloria G. Coco, Asst. State's Attys., Chicago, of counsel.

SULLIVAN, Presiding Justice:

After a bench trial, defendant was convicted of theft by deception and received a sentence of 2 to 6 years. On appeal, he contends that (1) he was not proved guilty beyond a reasonable doubt; (2) there was a fatal variance between the offense charged and the proof at trial; and (3) the trial court improperly denied him a preliminary hearing.

The testimony at trial disclosed that a man identifying himself as Mike Spracht informed Andrew F. Maletich, Jr. that he had television sets for sale, and a few days later he telephoned Andrew F. Maletich, Sr. and explained that he worked for a furniture store and, due to financial problems, his boss was selling his stock of television sets. Spracht told Maletich, Sr. that he could purchase 15 to 20 sets for $4,700 if he paid cash and picked them up in his own truck. Maletich, Sr., who was president of Rite-Way Tile and Carpet Company (Rite-Way), and his son, who was vice president, thought those terms fair and agreed to the purchase intending to use the sets to promote carpet sales.

Then, on July 26, 1977, Maletich, Sr. received another telephone call at his office from Mike Spracht, who told Maletich, Sr. to meet him in the Rite-Way company truck at 22nd and Central Avenue in Cicero. Immediately thereafter, Maletich, Sr. cashed a check for $4,700, counted the cash in front of his son, and put the money into a white envelope which he gave to his son and instructed him to take the company truck to meet Spracht, who would direct him to a warehouse where he was to give Spracht the money in exchange for the television sets.

That same day, Maletich, Jr. drove the truck to the prearranged location and was met by defendant, who directed him to drive around the block to a warehouse where they sat in the vehicle for about five minutes while defendant showed him a brochure from which he was to choose the sets he wanted. Defendant then said that he was going to see if his boss, who lived around the corner, was at home and that Maletich, Jr. should give him the money and wait for him. Maletich, Jr. handed defendant the envelope containing the money and, after they conversed for another five minutes, defendant left holding the money in his hands. Maletich, Jr. waited for awhile and then looked for but could not find defendant.

The next day, Mike Spracht called Maletich, Sr. and, after apologizing for his abrupt disappearance the day before, said he would return the money. He again promised to do so in a telephone conversation a few days later.

OPINION

Defendant first contends that he was not proved guilty of theft by deception beyond a reasonable doubt. In support thereof, he argues that no evidence was adduced to show the money had been withdrawn from the corporate account or the victim's personal account; that the cancelled check was not offered in evidence; that the existence of the corporation was not established; and that there was no evidence to show that he was the person who received the money or to negate the fact that Andrew Maletich, Jr. may have absconded with the money.

The crime of theft by deception is defined in section 16-1(b) of chapter 38, which provides:

"A person commits theft when he knowingly:

(b) Obtains by deception control over property of the owner; * * *. " (Ill.Rev.Stat.1977, ch. 38, par. 16-1(b).)

The elements essential to sustain a charge of theft by deception are that a named person owned or possessed specified property; that the accused knowingly obtained by deception control over that property; and that the accused acted with the intent to permanently deprive the named person of the use and benefit of that property. See People v. Decker (1974), 19 Ill.App.3d 86, 311 N.E.2d 228.

The record in the case at bar discloses that following telephone conversations with a man identifying himself as Mike Spracht, who offered 15 to 20 television sets for about $4,700, Maletich, Sr. cashed a check for that amount and gave it to his son, with instructions to pick up the sets in the company truck in exchange for the money; that Maletich, Jr. drove the truck to a certain location where he met defendant, who directed him to drive for about 10 minutes, and when they stopped defendant showed Maletich, Jr. a brochure from which he was to select the sets he wanted; that defendant then asked for the money and told him to wait in the truck while he (defendant) went to see if his boss was home; that Maletich, Jr. gave defendant the envelope containing the money and, after they conversed for another five minutes in the truck, defendant left holding the money in his hands; and that Maletich, Jr. waited another 5 to 10 minutes and then tried but could not find defendant.

In our view, the evidence established that Maletich, Jr. was the named person who had possession of the property when it was stolen; that defendant knowingly obtained by deception control over it by falsely representing himself to be an employee of a company that was liquidating its stock of television sets at a discount; and that when he left with the money and did not return, defendant intended to permanently deprive Maletich, Jr. of the use and benefit thereof. On the basis of this evidence, we think it clear that all reasonable doubt as to defendant's guilt of theft by deception was sufficiently removed.

It is also significant that the testimony presented at trial runs counter to defendant's claim that there was no proof of a $4,700 check written by Andrew Maletich, Sr., either from the corporate account or the victim's personal account, or by a receipt for that amount signed by defendant. Maletich, Sr. testified that immediately after the third telephone conversation with Mike Spracht, he cashed a check for $4,700, counted the money in front of his son, and put it into a white envelope; and that he then gave the cash to his son, instructing him to give it to Spracht in exchange for the television sets. Maletich, Jr. testified that he handed the white unsealed envelope containing the money to defendant, who left holding the money in his hands. Thus, contrary to defendant's assertion, it appears clear that the stolen property was identified through this testimony as belonging to the Maletiches.

There remains, however, the question of whether that identification was sufficient and, in this regard, it is established that if the sufficiency of the identification of stolen property is in issue, the ultimate determination as to the weight and credibility of the evidence rests with the trier of fact and, absent abuse of discretion, that finding will stand. (People v. Panus (1979), 76 Ill.2d 263, 29 Ill.Dec. 113, 391 N.E.2d 376; People v. Mertens (1979), 77 Ill.App.3d 791 33 Ill.Dec. 206, 396 N.E.2d 595.) In the present case, the trial court necessarily found the testimony of the Maletiches to be credible and that the State's failure to produce a cancelled check or a receipt was not critical to its determination of guilt. In view of the fact that the Maletiches corroborated each other and no contrary evidence was presented, we see no abuse of discretion in the trial court's finding that identification of the stolen property was sufficient.

Defendant's claim that the corporate existence of Rite-Way was not established is also without merit. Whether the $4,700 in fact belonged to Maletich, Sr. or to the corporation is immaterial for purposes of proving the crime of theft by deception, since the evidence clearly demonstrates that defendant took property belonging to another. Nonetheless, it appears that the existence of the corporation was established. In any prosecution for theft, the State must allege and prove ownership of the stolen property in someone other than the accused (People v. Drake (1974), 20 Ill.App.3d 762, 314 N.E.2d 532; People v. Demos (1971), 3 Ill.App.3d 284, 278 N.E.2d 89), but if the stolen property is allegedly owned by a corporation, proof of its legal existence is necessary to secure conviction (People v. Rance (1979), 68 Ill.App.3d 639, 25 Ill.Dec. 295, 386 N.E.2d 566; People v. Geraci (1974), 25 Ill.App.3d 191, 323 N.E.2d 48). Such proof may be through introduction of the corporate charter, certified copy of the corporate charter, or by evidence establishing a prima facie case of corporate existence (People v. Gordon (1955), 5 Ill.2d 91, 125 N.E.2d 73), or proof of corporate existence may be shown through oral testimony of a person with knowledge of the fact in the absence of contrary evidence (People v. DeBartolo (1975), 24 Ill.App.3d 1000, 322 N.E.2d 251; see Rance). In the instant case, Maletich, Sr. testified that he was president "of Rite-Way Tile and Carpet Company, Inc." and, on cross-examination, he was asked and answered that Rite-Way was a corporation.

Finally, the testimony belies defendant's claim that it was not shown that he received the money or that Maletich, Jr. did not abscond with it. In this regard, Maletich, Jr. testified that he drove the company truck to the prearranged location, where defendant entered and instructed him to drive around for approximately 10 minutes before telling him to stop; that they sat in the truck for another five minutes while defendant showed him a brochure concerning television sets; and that during this 15 to 20 minute period, he had been able to look directly at defendant and, at his request, gave him the envelope of money.

The determination of credibility rests with...