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People v. Vettese

OPINION FILED JUNE 8, 1978.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

MARVIN VETTESE, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. KENNETH WENDT, Judge, presiding.

MR. PRESIDING JUSTICE JOHNSON DELIVERED THE OPINION OF THE COURT:

Following a bench trial, Marvin Vettese and Michael Weber were convicted of conspiracy and attempt theft by deception. Two other defendants, Francis Niemi and Carol Weber, pleaded guilty to conspiracy and were sentenced to 3 years probation. Defendant Vettese was sentenced to 5 years probation and 210 days of periodic imprisonment after the trial court gave him a choice between that sentence and 1 to 3 years of imprisonment.

Defendant Vettese appeals the convictions and raises the following three issues for review: (1) Whether the defendant's convictions for both conspiracy and attempt theft by deception were proper in that they both arose out of the same series of acts; (2) whether the defendant's sentence to 210 days of periodic imprisonment was proper without the trial court specifying the days and hours defendant was to be released; and (3) whether evidence of defendant's prior conviction was properly admitted in the hearing for sentencing.

The facts are not in dispute and unfold as follows: Defendant Vettese, using the name of John Marshall, contacted Mr. Tempel Smith, president of Tempel Steel Company, and represented himself as an agent of John L. Behr who, along with his mother, Edith Behr, owned some property leased to Mr. Smith. The defendant offered to sell the property to Mr. Smith for $2 million and advised him not to contact Behr personally. Mr. Smith testified that he had been interested in purchasing the property but had been advised by the owners that it was not for sale. Mr. Smith then contacted Earl Talbott, an attorney with the firm of Kirkland and Ellis, to represent him in the transaction.

The defendant, representing himself as John Marshall, then contacted Frank Romano, an attorney. Romano testified that John Marshall and Tom Allen (later identified as Michael Weber) told him they were agents of John Behr empowered to act on his behalf in the sale of the real estate in question.

A meeting was held on August 5, 1975, between Earl Talbott, Smith, Romano and his brother, Frank, and John Marshall to discuss the terms of the sale. Smith agreed to place $500,000 into an escrow account. Further testimony revealed that Marshall later supplied Romano with a tract search and a verified power of attorney to act for John L. Behr. The documents were given to Romano by a woman posing as Marshall's secretary. Other testimony revealed that two other defendants, identifying themselves as John L. and Edith Behr, opened a checking account at the First National Bank of Chicago. Co-conspirator Michael Weber was later identified by the bank representative as the man who called himself John Behr. Weber later offered a Lake Forest police officer, Frederick Erickson, "several thousand dollars" if he could obtain a photograph of Behr and a copy of his signature. The telephone number given to the bank representative was proved to be an answering service number obtained in the name of John Marshall.

Romano testified that he met with a John Behr, who was later identified as Weber, and upon being shown his identification — driver's license, voter's card, and printed checks — obtained his signature on a deed in trust and a trust agreement. On October 30, 1975, Romano called the real John Behr and at a subsequent meeting, discovered the fraud. In early November 1975, the State's Attorney's office was contacted, resulting in the convictions for conspiracy and attempt theft by deception.

Defendant argues first that the trial court erred in convicting him on the charge of conspiracy because that charge was based on the same physical acts which supported the conviction for attempt theft. He cites People v. King (1977), 66 Ill.2d 551, 363 N.E.2d 838, as authority for his position that multiple convictions are permissible only where a defendant has committed several different acts; and People v. Roop (1976), 39 Ill. App.3d 710, 350 N.E.2d 236 to support his contention that the convictions for conspiracy and attempt theft by deception are based on the same set of acts and, therefore, cannot lie without resulting in unfair prejudice to the defendant. We disagree.

• 1 A conspiracy conviction is supported by proof that an agreement existed between the defendants to commit an illegal act and that any one of the co-conspirators performed some act to further the conspiracy. (Ill. Rev. Stat. 1975, ch. 38, par. 8-2.) The agreement element of the conspiracy offense does not require a showing of specific words or acts to intend the commission of an illegal act. The existence of the conspiracy may be proved by circumstantial evidence; it can be inferred by the conduct and statements of the parties and from the surrounding circumstances of the particular occurrence. (People v. Bailey (1975), 60 Ill.2d 37, 45, 322 N.E.2d 804, 809.) An act in furtherance of the conspiracy committed by any one of the co-conspirators is sufficient to bind all of the co-conspirators. People v. Hoover (1976), 35 Ill. App.3d 799, 805, 342 N.E.2d 795, 799.

• 2 The evidence has clearly shown that defendant Vettese and three other persons attempted to sell land belonging to John Behr without his authorization. The agreement element of the conspiracy offense was met with this proof. Vettese's act — contacting Smith with an offer to sell the land — was a sufficient act in furtherance of the conspiracy to sustain the conviction.

• 3 Once the conspiracy is proved, any further illegal acts committed by any one of the parties in furtherance of the common criminal purpose imposes criminal liability on all the parties, whether or not they participated in the illegal act.

"Where one attaches himself to a group bent on illegal acts * * * he becomes criminally liable for any wrongdoings committed by other members of the group in furtherance of the common purpose, or as a natural or probable consequence thereof, even though he did not actively participate in the overt act itself." People v. Tate (1976), 63 Ill.2d 105, 110, 345 N.E.2d 480, 483.

• 4 The proof required to support the conviction for attempt theft by deception was an act by the defendant, or any other member of the group, that constituted a substantial step toward completion of the agreed upon offense. In our view, the execution of the trust deed and the letters of direction to complete the land transfer constituted a substantial step toward completion of the theft. Had there been no detection of the fraudulent transfer at this point, the theft would have gone on to completion.

The defendant's contention that identical acts proved both the conspiracy and attempt theft is not supported by case law. The defendant cites People v. King (1976), 66 Ill.2d 551, 566, 363 N.E.2d 838, 844 in support of this contention. Careful reading of King and the cases following it does not support this view. In King, the defendant was convicted of rape and burglary with intent to commit rape. He urged the court that since the criminal objective of the burglary was to commit the rape for which he was ...


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