People v. Wiesneske

• Citation: 234 Ill.App.3d 29,175 Ill.Dec. 252,599 N.E.2d 1266
• Decision Date: 25 August 1992
• Docket Number: No. 1-90-0068,1-90-0068
• Parties: , 175 Ill.Dec. 252 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Joel WIESNESKE, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1266

599 N.E.2d 1266

234 Ill.App.3d 29, 175 Ill.Dec. 252

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Joel WIESNESKE, Defendant-Appellant.

No. 1-90-0068.

Appellate Court of Illinois,

First District, Second Division.

Aug. 25, 1992.

Jack O'Malley, State's Atty., County of Cook, Chicago (Renee Goldfarb, Eileen O'Neill and Clare M. Wesolik, of counsel), for plaintiff-appellee.

Rita A. Fry, First Asst. Public Defender of Cook County, Chicago (Timothy J. Leeming, of counsel), for defendant-appellant.

Justice DiVITO delivered the opinion of the court:

Defendant Joel Wiesneske was charged with felony theft from his employer, Schaumburg Datsun, Inc. Following a bench trial, the circuit court found defendant guilty; he was subsequently sentenced to three years' imprisonment and ordered to pay $29,989.14 in restitution. On appeal, defendant contends that the evidence did not establish his guilt of felony theft beyond a reasonable doubt; the circuit court erred in allowing the prosecution to introduce a spread sheet exhibit; he was denied his sixth amendment right in that the circuit court permitted a witness to assert his fifth amendment privilege against self-incrimination; and the circuit court abused its discretion in sentencing him.

The evidence adduced at trial established that, during 1983 and 1984, Thomas Sondag was president and general manager of Schaumburg Datsun, a car dealership. As general manager of the dealership, Sondag would, in the course of his typical duties, oversee the operation of the dealership and work with all the managers, including the office manager, parts manager, service manager, and the two delivery managers. Also during this time, defendant worked for Schaumburg Datsun as one of its two delivery managers, or finance managers. As a delivery manager, defendant collected the money received on all automobiles that were sold by the salespersons and completed the paperwork necessary for delivering a car to a customer.

Marie Bolf, the license and title clerk and cashier, Catherine Williams, the office manager, and Sondag all testified as to the typical procedures involved in the sale of an automobile: initially, the salespersons would negotiate a sale, write a buyer's order form, and bring the customer's deposit money to the cashier. The cashier would then issue a receipt for the customer's deposit; the customer would receive one copy, another copy remained in the cash receipt machine, and yet another copy was put in the deal jacket. The deal jacket, prepared by a salesperson when a car was first received at the dealership, would contain all the paperwork involved in the sale of an automobile. Thereafter, the salesperson would take the customer and the deal jacket to the delivery manager.

The delivery manager would then discuss with the customer the method of payment and the time that the customer would take possession of the car. The delivery manager's first function would be to collect all the money connected to the sale, either through finance contract, cash, check, or credit card; he would then make certain that all the paperwork, including the license and title, tax form, bill of sale, and warranty registration, pertaining to that sale was correct. After the customer paid, the delivery manager would then take the payment to the cashier, who would apply the money to the account number listed on the deal jacket. Occasionally the name on the payment check did not correspond to the name on the deal jacket. After a sale was completed, the information contained in the deal jacket would then be taken to the office manager, who would enter that information into the computer files. The office manager would also, in the course of her regular duties, maintain the dealership's books, the schedules, the ledgers and the journals, and check the numbered receipts issued by the dealership.

Routinely, the dealership would allow customers to take possession of the cars prior to full payment of the purchase price. The decision to allow the customers "early" possession was the delivery manager's; that decision was based upon his determination of the credit-worthiness of the customer. Once a car was delivered to a customer who had not paid in full, that customer's name was then entered in the note list, which contained the stock number of the car, the amount owed to the dealership, and the approximate date that the customer would pay in full. The delivery managers controlled the note list, updating it as customers paid. Although the delivery managers were in control of the note list, both the office manager and Sondag reviewed it occasionally to determine how much was owed to the dealership. Additionally, the office manager would, about once a week, print out a computer list to check that the note list and the information in the computer were in agreement.

In July of 1984, while defendant was on vacation, Sondag attempted to review the amount of money owed to the dealership, but was unable to find the note list. Not finding it in defendant's office, where it would typically be kept, Sondag asked the office manager to prepare a print-out from the computer listing the money due from customers. Sondag was "amazed" at the amount of money still owed the dealership on cars which had already been delivered; accordingly, he called the first customer on the computer list. That customer indicated that he had already paid defendant in full. The second customer whom Sondag called also stated that he had paid in full. Thinking that there must be some "misunderstanding," Sondag sent mail-a-grams to all the customers on the computer list, stating that they owed the dealership money and that the dealership needed to collect the outstanding balances. Several customers responded to the mail-a-grams, informing Sondag that they had paid cash to a "clerk" in the dealership; several customers identified defendant as the employee they had paid.

Sondag then apprised the dealership's owners, his father Clayton Sondag and James Kussman, of the computer listing indicating an extensive amount of money still owed to the dealership. After further reviewing the computer listing and all the deal jackets, Sondag prepared a "spread sheet," an accounting ledger summarizing each customer's sale, the money paid, and the money received by the dealership.

Sondag wrote down on the spread sheet the results of each sale: the price of the car, the funds that the customer paid, the funds that were received, and any funds that had been put in another customer's account. The last entry was necessary because Sondag had discovered that certain checks from one customer "got put" into other customers' accounts. Sondag created his "spread sheet" with information contained in the deal jackets, information from customers, and information given to him by Catherine Williams, the office manager. At Sondag's request, Williams prepared a computer listing detailing the money owed and paid by customers. According to Williams, only she entered information into the computer; Sondag never entered information into the computer on his own, nor did he ever tell her what information to put into the computer. After preparing his spread sheet, Sondag determined that approximately $43,000 was missing.

When defendant returned from vacation, Sondag, Kussman, and Clayton Sondag met with him in Sondag's office. There, they confronted defendant with the charge that he was responsible for the missing money. Defendant admitted taking money from the dealership, but stated that he did not know how much. In response to the owners' question whether anyone else was involved in the lapping scheme, defendant answered no. He then agreed to reimburse the dealership and began that day by signing over his $4000 paycheck. Telling the owners that he needed additional time to raise the rest of the money, defendant left the dealership, promising to return that day at 5 p.m.; however, he never came back to the dealership.

At trial, in addition to Sondag's and Williams' testimony, the State presented the testimony of several customers of Schaumburg Datsun. Suzanne Bobka testified that she purchased a $9000 car from the dealership on December 27, 1983. On that day she gave a $200 deposit to James Kussman, Jr., the other delivery manager, for which she received a receipt. She then spoke with defendant about the various possibilities of financing. When defendant was unable to obtain financing for her, Bobka obtained her own and returned to the dealership where she gave defendant a $1,300 cashier's check; defendant, however, did not give her a receipt. Sometime after the sale, she received notice from the dealership that she still owed $1,300; in response, she sent the dealership a copy of her bill of sale and a copy of the cashier's check to show that she had paid in full.

Sandra Biederstadt testified that on November 3, 1983, she purchased a car for $11,420, making a $50 down payment to a salesperson; she was issued a receipt for the $50. After her credit was approved, she met with defendant at the dealership, paying him $500 in cash and giving him a $1650 personal check. She did not receive the "same kind" of receipt as she had for the $50 down payment; rather she received a "bill of sale" which indicated a $2150 "cash on delivery" amount due, but did not indicate that that amount had been paid. Later, Biederstadt received notice from the dealership that she still owed $400. She, in turn, contacted the dealership and told Sondag that she had paid in full.

William McNamee testified that on March 30, 1984, he purchased a car from the dealership, giving a $100 deposit to a salesperson, for which he received a receipt. The following day, McNamee returned to the dealership, where he was introduced to defendant and spoke with him about financing the car. McNamee then gave defendant $2,000 in cash, but did not receive a receipt. After receiving notice from...