APPEAL from the Circuit Court of Du Page County; the Hon. JOHN
J. BOWMAN, Judge, presiding.
MR. JUSTICE NASH DELIVERED THE OPINION OF THE COURT:
Following a jury trial, defendant Anita Arriaga was convicted of bribery (Ill. Rev. Stat. 1977, ch. 38, par. 33-1(d)) and official misconduct (Ill. Rev. Stat. 1977, ch. 38, par. 33-3(d)). She was sentenced for bribery to two years conditional discharge and fined $2,000. She appeals, contending (1) the trial court erred in refusing to instruct the jury as to the defense of entrapment and she was not proved guilty beyond a reasonable doubt on that issue; and (2) the trial court erroneously instructed the jury on the issue of bribery.
The occurrence giving rise to the offenses in question took place during an investigation conducted by the Illinois Secretary of State's office of the Lombard driver's license examination facility at which defendant was employed as a road test examiner. Oscar Aguilera, an investigator for the Secretary of State's office, posed as a normal candidate for a driver's license and testified at trial that initially he intentionally failed the written portion of the driver's examination given to him by another employee of the facility. Aguilera returned to the facility later that day and again took the written examination, this time passing it; he was then assigned to defendant, Anita Arriaga, for his road test. This was his first knowledge of defendant as the investigation being conducted at the facility was directed against James Wright, its supervisor.
During the course of the road test Aguilera deliberately made numerous driving errors, which defendant pointed out to him. He testified that after one such error he asked defendant if she would help him and she told him to park the car and then stated she would help him if he would give her some money. At that point Aguilera stated he took out a previously marked $10 bill and held it in his hand and defendant took it, placed it in her bra and thereafter coached him throughout the duration of the road test. He stated his examination papers were marked to reflect he had successfully passed, and he re-entered the license facility building where he went to Mr. Wright's office. After about 10 minutes he stated he gave money to Wright then left signaling other investigators to move in.
Aguilera and a second investigator then went outside to find defendant. He saw her getting out of a car and believed she was completing a road test with another driver; he informed her she had been caught accepting a bribe. The investigators accompanied defendant to the employee's lounge where she retrieved the $10 bill (later identified as the one given by Aguilera to defendant), from between a pair of black gloves on a coat rack. On cross-examination the witness related that at the time he went out to the car with defendant he had no reason to believe she would accept a bribe and admitted it was he who first mentioned offering money to her in exchange for a passing score on the road test.
Don Johnson, who assisted Oscar Aguilera in the investigation, testified in substantially the same manner as to the events occurring after defendant returned to the facility and was informed she had been caught accepting a bribe. The witness identified the $10 bill defendant retrieved from the employee's lounge as one whose serial number had been recorded and then given to Aguilera. John D. Gray, director of professional standards for the Secretary of State's office and John Schiave, chief examiner for the Secretary of State, described the procedures to be followed if a driver's examiner is offered a bribe; namely, the examiner must terminate the test at that point, mark the examination failed, and turn the applicant, application and money over to the facility supervisor. Mr. Schiave testified defendant had signed (indicating she had read) a memo setting forth these requirements. Other test examiners working in the office that afternoon noted it was a busy day and that defendant came to the desk where test applications are turned in looking for one. She then approached Mr. Wright's office window and there were other people inside with him.
Defendant testified it was not until Aguilera completed his road test and was pulling his automobile into the facility parking lot that the first mention of money was made. She stated that Aguilera asked whether he could do something for defendant, could he give her some money, and she told him he had passed the examination and she did not know what he was talking about. Defendant further explained she gave Aguilera his application to sign, which he did, and that he then took the application, put a $10 bill in defendant's hand, walked from the car without even closing the car door and then ran into the license facility building. Defendant stated she went into the building and searched the files of the facility unsuccessfully for Aguilera's application while intending to take it with the $10 to make a report to her supervisor. She went to the supervisor's office but found him conversing with other men, unsuccessfully searched for the assistant supervisor, then went to the kitchen and placed the $10 bill between her gloves, and was continuing her search for the assistant supervisor outside the facility building when she was arrested.
At the conference on instructions the trial court overruled defendant's objections to the instructions tendered by the State defining the offense of bribery (Ill. Rev. Stat. 1977, ch. 38, par. 33-1) and the issue formed by that charge. As given to the jury by modifications of Illinois Pattern Jury Instructions, Criminal Nos. 21.07 and 21.11, they read as follows:
"A person commits the crime of bribery who, receives or retains any property knowing that the property was tendered with intent to cause her to influence the performance of any act related to the employment or function of a public employee."
"As to Count I, to sustain the charge of bribery, the State must prove the following propositions:
FIRST: That the defendant received any property; and,
SECOND: That the defendant knew that the property was tendered by Oscar Aguilera — Luis Gonzales with intent to cause the defendant to influence the performance of any act related to the employment or function of a public employee.
If you find from your consideration of all the evidence that each of these propositions has been proved beyond a reasonable doubt, then you should find the defendant guilty.
If, on the other hand, you find from your consideration of all the evidence that any of these propositions has not been proved beyond a reasonable doubt, then ...