APPEAL from the Circuit Court of Montgomery County; the Hon.
PAUL M. HICKMAN, Judge, presiding.
MR. JUSTICE EBERSPACHER DELIVERED THE OPINION OF THE COURT:
Defendant, Yolanda Mitchell, was charged in the circuit court of Montgomery County with the offense of deceptive practices. Following a jury trial defendant was found guilty as charged and was sentenced to conditional discharge for a period of two years and was fined $500. From the judgment entered by the trial court, defendant brings this appeal.
On appeal defendant presents the following issues for review: whether the evidence was sufficient to support the verdict; whether the trial court erred in excluding certain evidence; whether the court erred in refusing an instruction tendered by defendant; and whether the fine was excessive.
This case arose from a check drawn from defendant's bank account and signed by her which was made payable to Milnot Company in the amount of $78.15. The check was used to purchase a large quantity of ice cream for defendant's business. Verna Brakenhoff, a receptionist with Milnot, testified that on September 5, 1975, defendant signed the check in her presence and gave it to her and in return received possession of the ice cream. The witness stated that defendant did not tell her that there were insufficient funds to cover the check nor that the check should be held for a period before presenting it for payment. The check was dated September 5, 1975. Leon Green, the sales manager for Milnot, testified that he was not present during the September 5 sales transaction in question but that he learned that the check had been returned unpaid about a week to ten days thereafter. Green stated that he also had not been told on the date the check was issued that there were insufficient funds to cover the check nor that the check should be held for a period before presenting it for payment. On cross-examination by defendant, Green described his efforts to obtain payment from defendant leading eventually to a return of a portion of the ice cream purchased. Oliver Camillo, a vice-president of the First National Bank of Collinsville, next testified concerning defendant's bank records. Defendant's account was opened on August 2, 1975, with a deposit of $400 and an additional deposit of $120 was made on August 12, 1975. August 12, 1975, was the last date on which the bank records reflected a positive balance in the account. Evidence was presented showing that prior to September 5, 1975, 14 checks were returned, that defendant was sent six overdraft notices covering checks in excess of $600, and that no further deposits had been made after August 12, 1975. Camillo testified that the bank charged $2 for every check that was returned and that defendant's account was closed on November 14, 1975, when these charges totaled approximately $78.
Defendant testified denying that she intended to defraud anyone. She stated that on the date of the transaction she was aware that her account contained insufficient funds to cover the amount of the check but that Green also had been so informed, was present during the transaction and had agreed to hold the check one week before presenting it for payment. She also testified that she did not subsequently attempt to pay the check because she had returned the ice cream. On rebuttal it was shown that only approximately $58 worth of ice cream was returned.
Defendant first contends that the evidence was insufficient to support the verdict and that she was not proved guilty beyond a reasonable doubt. Both arguments involve the identical question; whether an intent to defraud was proven. Initially we note that defendant, in her brief, appears to assert that there was no evidence that she knew that there were insufficient funds in her account to cover the check. However, this assertion is wholly unsupported by the record. The evidence shows that prior to September 5, 1975, defendant was sent notice by her bank that her account reflected a negative balance and indeed defendant, herself, admitted at trial that she knew that there were insufficient funds to cover the check to Milnot.
• 1 Next, defendant relies on a statement in People v. Balalas, 334 Ill. 444, 446, wherein the court stated:
"[A] person knowing that he has insufficient funds may issue a check without an intent to defraud, as where he expects to deposit sufficient funds before the check can be presented."
Defendant argues that an intent to defraud was not proven since her testimony shows that she had informed Green who was present during the transaction that she had insufficient funds and had asked him to hold the check for one week. Green, however, testified to the contrary, that he had not been so informed and that he was not even present during the transaction. Brakenhoff also testified that Green had not been present at the time and that she, herself, was not told either that there were insufficient funds or that the check should be held for a period before presenting it for payment. The evidence thus presented a conflict which was the function of the jury to resolve, having had an opportunity to observe the witnesses and determine their credibility. (People v. Everett, 14 Ill. App.3d 421, 302 N.E.2d 723.) The jury obviously chose not to believe the testimony of defendant and we note that there was no evidence showing that defendant expected to deposit sufficient funds to cover the check after it had been issued. Consequently, we find no merit to defendant's contention.
Defendant's second contention is that the trial court erred in refusing to allow evidence that she filed for bankruptcy around October 21, 1975, and in refusing to allow her to cross-examine Green concerning the bankruptcy.
• 2 Defendant argues, citing People v. Reans, 20 Ill. App.3d 1005, 313 N.E.2d 184, that this evidence was relevant as tending to disprove an intent by her to defraud Milnot since it explains the reason for her nonpayment of the check. Specifically, she quotes the court in Reans which stated:
"[W]e would normally favor the admission of evidence of attempts at restitution for the purpose of having a jury or a trier of fact consider these activities with all other facts in determining the absence or presence of felonious intent * * *." (20 Ill. App.3d 1005, 1008-09, 313 N.E.2d 184, 187.)
We find defendant's reliance on Reans to be unfounded since in that case the defendant was convicted of theft by deception. The "intent" referred to in the quote was the element of intent to permanently deprive the owner of the use or benefit of the property rather than an intent to defraud which was at issue in the case at bar. In People v. Cundiff, 16 Ill. App.3d 267, 305 N.E.2d 735, the defendant was convicted of deceptive practices. On appeal he argued that he should have been allowed to show the jury that he intended to pay the losses through subsequent chapter 11 proceedings in the Federal Bankruptcy Court. The court in affirming his conviction stated:
"We agree that such a defense is entirely irrelevant. The crime is complete, if it has been committed at all, when the making, delivery, or uttering of the check takes place and it is immaterial whether payment or restitution is subsequently made. [Citation.] The fact of Chapter 11 Bankruptcy instead of negativing any fraudulent intent, would ...