People v. Butcher

630 N.E.2d 198, 257 Ill. App. 3d 1051, 196 Ill. Dec. 501, 1994 Ill. App. LEXIS 273
CourtAppellate Court of Illinois
DecidedMarch 4, 1994
DocketNo. 2—92—1255
StatusPublished

This text of 630 N.E.2d 198 (People v. Butcher) 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. Butcher, 630 N.E.2d 198, 257 Ill. App. 3d 1051, 196 Ill. Dec. 501, 1994 Ill. App. LEXIS 273 (Ill. Ct. App. 1994).

Opinion

JUSTICE McLAREN

delivered the opinion of the court:

The defendant, Carol-Butcher, was charged by information on September 14, 1990, with theft (Ill. Rev. Stat. 1989, ch. 38, par. 16— 1(a)(2) (now 720 ILCS 5/16 — 1(a)(2) (West 1992))) and deceptive practices (Ill. Rev. Stat. 1989, ch. 38, par. 17 — l(B)(d) (now 720 ILCS 5/17— l(B)(d) (West 1992))) for buying a computer with a subsequently dishonored check. Following a bench trial, the defendant was found not guilty of theft but guilty of deceptive practices. She was sentenced to 30 months of probation and 200 hours of community service. This appeal followed, and we affirm.

The defendant’s sole contention on appeal is that she was not proved guilty beyond a reasonable doubt. The standard for reviewing such a claim is whether, 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. Smith (1992), 149 Ill. 2d 558, 565; People v. Collins (1985), 106 Ill. 2d 237, 261.) The reviewing court must not substitute its judgment for that of the trier of fact, particularly as to matters of credibility and the weight to be given disputed evidence. People v. Herrett (1990), 137 Ill. 2d 195, 206.

We are satisfied that there was sufficient evidence from which the trial judge, as the trier of fact, could rationally find the defendant guilty of deceptive practices beyond a reasonable doubt.

Greg Parker testified for the State that he conducted a court-ordered receivership auction for Dunning’s Auction Service on May 19, 1990, during which the defendant was the successful bidder on a computer.

The defendant tendered to Dunning’s a check in the amount of $2,982 for the computer, and the check was deposited in the firm’s bank on May 21, 1990, the first business day following the Saturday auction. The check was returned unpaid for lack of sufficient funds. Parker said he redeposited the check a second time, and again it was dishonored. Parker said he sent the defendant a certified letter regarding the returned check. He said the defendant called him on June 14, 1990, and explained that her check was dishonored because one of her clients had given her a bad check, which resulted in her business account having insufficient funds to cover the check for the computer. Parker said the defendant asked if she could return the computer, and he told her that he could only take the computer back on reconsignment. He told the defendant that he could not guarantee what price she might get for the computer on reauction. The computer was not returned to Dunning’s.

David Franzen, an official of Harris Bank in Roselle, testified that the computer check was written against an account held by the defendant under the business name of CCSI. The State introduced a copy of the defendant’s bank statement for May 1990, showing that from May 18 through the end of the month the defendant’s CCSI account had insufficient funds to cover the computer check. The statement indicated that the defendant made deposits to the CCSI account on May 19, 21, 22 and 23, but the account was still $580 short of the amount needed to cover the computer check.

Franzen said his bank received a stop-payment order for the computer check from the defendant on May 26. Franzen said the reason stated for the stop payment was that the merchandise had been returned.

The defendant testified that on the day of the auction she knew that she did not have sufficient funds in her business account to cover the check she wrote for the computer, but she denied that she intended to defraud Dunning’s. She said that she intended to make sufficient deposits to her CCSI account to cover the check. She said that she received a check for $636 from a client, Cinco, which was very slow in paying its bills to her. She decided not to deposit that check into her CCSI account because she suspected it might not be good, and she wanted to avoid service charges. She said she called Cinco’s bank and learned that the check was not good. ■

The defendant put a stop-payment order on the Dunning’s check because she knew it would only be returned unpaid a second time. She said she decided to go to Cinco to get her $636 payment. She said she communicated several times with Dunning’s by telephone and mail concerning the computer check. She said she called Parker twice to discuss the computer check and offered to return the computer. She said he told her that all sales were final and that he only could take the computer back on reconsignment. Parker said she called him just once. The defendant said she would have returned the computer if they would have taken it back.

The defendant said that she was unable to cover the computer check because she experienced personal, marital and financial difficulties. On cross-examination, she admitted that she had funds from other nonbusiness sources which she deposited into other accounts during the time the Dunning’s check was outstanding.

Also on cross-examination, the defendant said she did not receive a copy of the conditions of the auction sale prior to bidding on the computer and said that the auction house announced that all sales were subject to final approval by the receivership judge. Parker testified that the terms of the auction were posted throughout the auction facility and that bidders received copies of the terms when they registered to bid. He could not recall if the terms included a proviso that all sales were final.

Also on cross-examination, the defendant said she picked up the computer the week following the auction, after she learned that her check to Dunning’s had been returned unpaid. She said she stopped payment on the check two days after taking possession of the computer, did not return the computer, and never tendered another check for its payment. On redirect examination, the defendant said she picked up the computer before learning that the computer check had been returned unpaid.

Following closing arguments, the judge found that the State failed to prove theft beyond a reasonable doubt but found the defendant guilty of deceptive practices.

To carry its burden in a prosecution for deceptive practices, the State must prove beyond a reasonable doubt that: (1) the defendant made, drew, issued or delivered a check, draft or order for payment; (2) the defendant obtained money or property in return; (3) the defendant knew at the time he or she tendered the check that there were insufficient funds in the account to pay the check or draft; and (4) the defendant acted with the intent to defraud. People v. Bormet (1986), 142 Ill. App. 3d 422, 424-25.

The deceptive practices statute provides:

"Failure to have sufficient funds or credit with the depository when the check or other order is issued or delivered, or when such check or other order is presented for payment and dishonored on each of 2 occasions at least 7 days apart, is prima facie evidence that the offender knows that it will not be paid by the depository, and that he has the intent to defraud.” (Emphasis added.) Ill. Rev. Stat. 1989, ch. 38, par.

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Related

People v. Sumner
437 N.E.2d 786 (Appellate Court of Illinois, 1982)
People v. Lundblade
420 N.E.2d 784 (Appellate Court of Illinois, 1981)
People v. Bormet
491 N.E.2d 1281 (Appellate Court of Illinois, 1986)
People v. Herrett
561 N.E.2d 1 (Illinois Supreme Court, 1990)
People v. Smith
599 N.E.2d 888 (Illinois Supreme Court, 1992)
People v. Collins
478 N.E.2d 267 (Illinois Supreme Court, 1985)
People v. Shepard
550 N.E.2d 599 (Appellate Court of Illinois, 1990)

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Bluebook (online)
630 N.E.2d 198, 257 Ill. App. 3d 1051, 196 Ill. Dec. 501, 1994 Ill. App. LEXIS 273, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-butcher-illappct-1994.