People v. Arbo

572 N.E.2d 417, 213 Ill. App. 3d 828, 157 Ill. Dec. 348, 1991 Ill. App. LEXIS 835
CourtAppellate Court of Illinois
DecidedMay 17, 1991
Docket3—90—0292, 3—90—0293 cons.
StatusPublished
Cited by14 cases

This text of 572 N.E.2d 417 (People v. Arbo) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Arbo, 572 N.E.2d 417, 213 Ill. App. 3d 828, 157 Ill. Dec. 348, 1991 Ill. App. LEXIS 835 (Ill. Ct. App. 1991).

Opinion

JUSTICE HAASE

delivered the opinion of the court:

A jury convicted the defendant, Avon Arbo, of six counts of felony theft and four counts of official misconduct (Ill. Rev. Stat. 1987, ch. 38, pars. 16—1(a)(1), (b)(1), 33—3(b), (c)). The trial court thereafter sentenced him to two years’ conditional discharge. The defendant appeals.

An 11-count indictment charged the defendant with seven counts of felony theft and four counts of official misconduct. Specifically, counts I, II, TV, and V charged the defendant with the theft of large quantities of weed killer and fertilizer. Count VI charged him with the theft of chimney supports, parts, and supplies. Count VII alleged that between October 1, 1988, and February 21, 1989, the defendant exerted unauthorized control over more than $300 in United States currency, belonging to the Plainfield School District. Counts VIII and IX alleged that he bought property for his own personal use using the school district’s tax registration number. Counts X and XI alleged that he ordered property from Tri-County Stockdale Co. and Excelsior Supply Division for his own personal use and then caused the school to pay for the items.

It was established at trial that the defendant ordered large quantities of weed killer and fertilizer from Tri-County Stockdale Co. even though the school’s supervisor of operations and transportation was in charge of ordering such supplies. According to the school board’s attorney, the defendant admitted ordering the supplies for his own personal use. Regarding the chimney parts and supplies, the defendant admitted that he ordered the items from Excelsior Supply Division for his own use and charged the costs to the school.

Much of the testimony presented at trial involved count VII, which charged the defendant with taking more than $300 from the school’s petty cash fund between October 1, 1988, and February 21, 1989. In that regard, Cindy Clausens, a bookkeeper at the high school, testified that $200 in $20 bills were always missing on Fridays at about the same time that the defendant left for the day. Richard Eldred, the school’s supervisor of operations and transportation, testified that in late February or early March of 1989, he noticed that envelopes marked “receipts” were in a garbage can near the shop area of the school. He reported his discovery to Clausens ¿nd Vicki Marshall, the school’s payroll clerk.

Vicki Marshall testified that on the day the envelopes were found in the garbage, the defendant was in the vault area of the office more often than usual. She noted that the petty cash receipts were stored in the vault. She further testified that she had told her husband about the receipts. Later in the day, her husband retrieved them from the dumpster and eventually stored them underneath his bed. Sometime thereafter, the Marshalls gave the receipts to an auditor.

Cindy Clausens testified that in March of 1989 she discovered envelopes containing petty cash receipts inside of a box that was on top of a garbage dumpster. She further testified that at the end of each year, she placed the petty cash receipts for the year in a manilla envelope. She identified her own handwriting on the petty cash envelopes offered at trial.

According to the school board’s attorney, the defendant admitted that he used the petty cash fund as a reserve on weekends and returned the money on Mondays. The defendant denied that he used the fund for anything other than school-related business.

CPA Terry Pillatsch audited the school’s petty cash receipts. After she was given envelopes containing the receipts, she removed the receipts and organized them by fiscal year. She then prepared a report comparing the difference between the amount in the petty cash account and the available receipts.

The State introduced into evidence an exhibit summarizing the accountant’s findings and showing that money was missing from the account. Defense counsel objected to the introduction of the exhibit into evidence, arguing that the State should simply show that receipts were missing and not money. He further argued that the accountant’s testimony on cross-examination would not tend to show that money was actually missing and, therefore, a mistrial should be declared because the State’s exhibit was not probative of theft.

The trial court allowed the State to display the exhibit. The accountant thereafter testified that $30,856 in funds were unaccounted for from 1982 through 1989. On cross-examination, she noted that the receipts she added up were not necessarily the total of the receipts that were once in the drawer. She further noted that the $30,856 she described as “unaccounted for” was merely the difference between the amount deposited in the petty cash fund and the receipts that ultimately ended up at her firm. She also stated that she could not tell whether there were any funds missing from the petty cash account.

Following the presentation of the accountant’s testimony, the court granted the State’s motion to amend count VII of the indictment. Count VII had alleged the theft of more than $300 of United States currency. The amendment added that the defendant’s “acts [were] in furtherance of a single intention and design to obtain the property of the Plainfield School District No. 202.”

The defendant first contends that the trial court erred in allowing the State to amend the indictment on the second day of trial.

We agree. Count VII of the indictment had originally alleged the theft of more than $300 in currency. The court allowed the State to amend that count on the second day of trial by adding that the defendant’s “acts [were] in furtherance of a single intention and design to obtain the property of the Plainfield School District No. 202.”

We note that People v. Brenizer (1986), 111 Ill. 2d 220, 489 N.E.2d 862, provides that a series of acts committed by a defendant, each of which might otherwise constitute a misdemeanor theft, may be charged as a single felony theft only if it is alleged that the acts were in furtherance of a single intention and design to obtain the property. Thus, the amendment in the instant case related to the mental state of the offense and was an essential element of felony theft as it was charged here. Moreover, the amendment occurred after the start of trial. Under these circumstances, we find that the defendant was not apprised of the precise offense charged with sufficient time to prepare a defense. (See People v. Payne (1990), 194 Ill. App. 3d 238, 550 N.E.2d 1214.) Accordingly, the defendant’s conviction for felony theft based on count VII must be vacated.

The State nonetheless argues that the element missing from the indictment was supplied by other counts of the indictment.

We disagree. The indictment reveals that none of the other counts of which the defendant was convicted related to the theft of currency. Accordingly, we find that the State’s argument is without merit.

Defendant alleges a number of other errors arising out of the testimony related to count VII.

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Cite This Page — Counsel Stack

Bluebook (online)
572 N.E.2d 417, 213 Ill. App. 3d 828, 157 Ill. Dec. 348, 1991 Ill. App. LEXIS 835, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-arbo-illappct-1991.