APPEAL from the Circuit Court of Lake County; the Hon. HARRY
D. STROUSE, Judge, presiding.
MR. PRESIDING JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT:
Following a jury trial, Duke Jedlicka, a building contractor, was convicted of nine counts of felony theft and two counts of fraudulent conveyance of land. He appeals from the convictions and a resulting sentence of 2-6 years imprisonment. He contends that (1) he was not proved guilty beyond a reasonable doubt of the thefts charged in counts 1, 3 and 7; (2) five of the convictions were carved from only two acts; (3) improper argument of the prosecutor created reversible error as to all counts (defendant was found not guilty on count 5); (4) the court committed reversible error in permitting a common dictionary to go to the jury and in failing to address questions raised by the jury during its deliberations; and (5) alternatively, that the sentence was excessive.
The salient facts will be summarized under the applicable counts of the indictment.
In count 1 defendant was charged with theft of property valued in excess of $150, by obtaining a check in the sum of $7,152 from John R. Pirc by executing an agreement to sell a house and lot to Pirc in return for his check * * * "without disclosing an adverse claim to the enjoyment of the aforesaid real estate" (Ill. Rev. Stat. 1975, ch. 38, par. 16-1(b)(1)); in count 3 defendant was charged with the offense of theft in excess of $150, by exerting unauthorized control over property of James E. Honquest and Marian T. Honquest, his wife, being their interest in the lot commonly known as 205 Forest Avenue, Lake Zurich, Illinois (Ill. Rev. Stat. 1975, ch. 38, par. 16-1(a)(1)); and count 7 charged defendant with the offense of theft by exerting unauthorized control over the property of David Murray and Jeanne Murray, being their interest in the real estate commonly known as 164 Forest Avenue, Lake Zurich (Ill. Rev. Stat. 1975, ch. 38, par. 16-1(a)(1)).
On June 24, 1975, the Honquests contracted with defendant for him to build a home on the lot at 205 Forest Avenue. At that time the Honquests tendered a down payment check to defendant in the amount of $4,824.50. Under the contract the home was to be completed by November 1, 1975.
The lot at 205 Forest Avenue was owned by Tom Joyce, whom Honquest assumed was a partner of defendant. There was an eight-month delay in constructing the home which defendant attributed to the lack of gas and power lines and grading of the road needed to bring heavy equipment to the construction site. In April 1976, the defendant requested another $18,000 from the Honquests in order to satisfy the remaining debt on the down payment which was needed to secure his construction loan. There was talk of putting the $18,000 into an escrow account but that did not materialize. Honquest testified that defendant refused to set up the escrow account but defendant placed the blame on Honquest. Defendant testified that he sent Honquest a cancellation letter on the ground that Honquest had breached the contract by failing to execute the necessary papers to enable the bank to disburse the construction funds.
On April 25, 1976, the defendant and John Pirc entered into a contract for the purchase and sale of the same home and lot at 205 Forest. On that date Pirc tendered a down-payment check made out to the Tracey Corporation, owned by the defendant, in the amount of $7,152. Pirc testified that he was not informed of the previous contract or any possible conflict of title with the Honquests. Sometime in June of 1976, Pirc learned of a civil suit that had been filed by the Honquests against the defendant, but was assured that defendant could satisfy the Honquests and that Pirc would have the home. The defendant testified as to his problems in obtaining financing and difficulties with contractors in building the home. On September 8, 1976, the defendant asked Pirc for an additional $9,000, representing the difference between the cost of the home and Pirc's mortgage commitment. Pirc offered to put the money in an escrow account, but defendant objected to that manner of handling the money. At that point Pirc demanded his money back from defendant. Pirc sued defendant and obtained a judgment against him which was settled together with the Honquest suit against the defendant. Defendant paid $1,000 to Pirc, and Pirc received an additional $2,900 from the Honquests after the sale of the property to them. The Honquests eventually bought the lot for $12,000 or $13,000 from Joyce.
On March 2, 1976, David Murray contracted with the defendant to have a home built on the land referred to as 164 Forest Avenue. Murray tendered a down payment of $5,472. The contract stated that the house would be built within 120 days of the date of the contract. The 120 days passed and construction had not yet begun. Murray demanded a full refund which defendant promised but never delivered to him. Defendant sent Murray a letter claiming that Murray had defaulted on the contract and thus there would be no refund. Defendant testified that he wrote the cancellation letter because Murray refused to sign the required papers at the bank in order to execute his mortgage. Murray filed suit and obtained a judgment against the defendant. He did not receive any money from defendant but was paid by one Paul Roraff as a part of a settlement when the Roraffs bought the property later.
On November 3, 1976, defendant and Paul Roraff executed a contract for the purchase and sale of the property at 164 Forest Avenue and for the construction of a home on the lot. The Roraffs lived in the home at 205 Forest while the construction was going on at the 164 Forest site. Sometime in May of 1977, the Murrays' attorney asked the Roraffs what interest they had in the home located at 164 Forest and it was discovered that a lis pendens had been filed against the property. A settlement was eventually reached between the defendant, the Murrays and the Roraffs which included a payment of money from the Roraffs to the Murrays. The Roraffs purchased the lot from one James Leiding to obtain title. At the time of settlement, the home was about 85% completed and the remaining construction was financed by the Roraffs.
1 These three counts involve the alleged double sales of the same property. As the indictments are drawn, counts 3 and 7 are based on the theory that defendant exerted unauthorized control over properties of the Honquests and the Murrays, being their alleged interest in 205 Forest and 164 Forest, respectively, while count 1 charged the theft by deception of Pirc's down payment without disclosing an adverse claim to the property supposedly sold to the Honquests. In these circumstances, defendant's argument that he could not have stolen the property interests of the named parties because they never acquired an interest in any property is persuasive. The defendant at no time had title. Therefore he could pass no title on to the buyer or any other possessory interest shown by the evidence and thus the defendant could not have affected the buyers' property interests at any time. The building contracts entered into between defendant and the Honquests and the Murrays do not purport to transfer any property interest in the underlying lots.
Count 1 is brought on a different theory than counts 3 and 7, that is, theft by deception. "Deception" is defined as
"(d) * * * failing to disclose a lien, adverse claim, or other legal impediment to the enjoyment of the property, whether such impediment is or is not valid, * * *." (Ill. Rev. Stat. 1977, ch. 38, par. 15-4.)
Under the facts, the contract claims which the Honquests had against the defendant would not operate as a legal impediment against the property since the Honquests received no property ...