Appeal from the Circuit Court of Whiteside County; the Hon.
John D. O'Shea, Judge, presiding.
JUSTICE ALLOY DELIVERED THE OPINION OF THE COURT:
The defendant was charged with four counts of theft by deception. (Ill. Rev. Stat. 1979, ch. 38, par. 16-1(b)(1).) The jury convicted him of all four counts and the trial court sentenced him to two terms of two years' imprisonment and one term of 2 1/2 years' imprisonment with the sentences to run concurrently. The trial court also ordered the defendant to make restitution to his victims. The defendant appeals his conviction, sentence and order for restitution.
The primary prosecution witnesses were the victims of the alleged thefts: Scott Butcher, Leroy Swanson and James Houseman. According to their testimony, the defendant entered into contracts with each of them to install windows of their homes. These witnesses gave the defendant down payments for their orders, but he did not order the windows from the factory, nor install any windows in the homes.
Leroy Swanson testified that he contacted the defendant after seeing a newspaper advertisement. The defendant came to Swanson's home to demonstrate his windows. Several days later, on April 12, 1980, the defendant visited Swanson again and contracted with him for 12 replacement windows and one storm door. The total contract price for the windows and storm door was $3,332. Swanson gave the defendant $2,527 as a down payment. The defendant told Swanson, at the time they signed the contract, that the windows would not be ordered from the factory until the defendant sold a load (100) of windows. The defendant estimated that it would take three to four months to receive and install the windows. Swanson also testified that the defendant never misled him into believing the windows had been ordered. After four months, Swanson asked the defendant about the delay, and the defendant explained that he still had not sold enough windows to comprise a load. Swanson also testified that he was always able to contact the defendant. In December 1980, Swanson asked the defendant to give him a check if he could not get the windows. The defendant replied that he had insufficient funds to refund Swanson's money. Swanson also testified that he contracted with the defendant for siding and a second storm door. The defendant completed this contract and also installed the storm door from the first contract in July 1980.
James Houseman testified that he contacted the defendant in July 1980. After one visit to demonstrate the windows, the defendant returned to Houseman's home to sign a contract. The total cost for these windows was $4,500. Houseman gave the defendant a first down payment of $1,000 and, approximately three weeks later, gave the defendant another $1,250. The defendant promised installation by October 15, 1980. Houseman could not remember whether the defendant informed him that he would not order the windows until he had sold 100 windows.
The defendant's brother, Gaylord Rolston, subsequently came to Houseman's home to take the measurements for the replacement windows. In September 1980, Houseman gave the defendant an extension for completion of the contract. The defendant explained to Houseman that he ordered the windows and that they were being manufactured.
Scott Butcher testified that Houseman introduced him to the defendant. Butcher wanted to purchase four storm windows, including one large enough to cover a sliding glass door. The defendant called the factory to find out if he could obtain a window that large. After completing the call, the defendant told Butcher that he could supply a window for the door. The defendant contracted to supply and install four storm windows for $636.50. Butcher paid the full amount.
The defendant promised to install Butcher's windows before the onset of the cold weather. Butcher did not remember whether the defendant initially told him that the windows would be ordered as part of a load, but the defendant later told him that they would be ordered that way. Six weeks later, in response to Butcher's inquiry, the defendant told him that the windows would be delivered soon.
In late November 1980, Houseman, Butcher and Swanson called Thermal Industries, the window manufacturer, to determine whether the defendant ordered the windows. When they discovered that the defendant had not ordered the windows, they contacted the defendant, who admitted that he did not order the windows and that he lied to them. The defendant told them he had not placed the orders because he was still waiting for enough windows to comprise a load.
Rosetta Thomas, another customer of the defendant, also testified for the State. Thomas contracted with the defendant in February 1980 for replacement windows. She paid him $2,375, but never received the storm windows. On cross-examination, Thomas stated that she signed a criminal complaint against the defendant, but the trial court dismissed that case at a preliminary hearing, ruling that it was a civil matter. Thomas subsequently sued the defendant and received a judgment against him.
Arthur Poland, the vice-president of Thermal Industries, testified that the defendant was an authorized dealer of windows. The defendant, his brother and another man received factory training at the company's Pittsburgh, Pennsylvania plant. Poland explained that a dealer, such as the defendant, would have to pay freight on all orders of less than 100 windows because they would be sent by common carrier. If, however, the defendant ordered 100 windows, the company would ship the windows itself. Poland also testified that any order placed by the defendant would have to be accompanied by one-third of the total price, with the balance payable on delivery. Poland verified that the defendant never ordered any windows.
The defendant principally relied upon the defendant's testimony. He testified that he had been a salesman for a variety of businesses for 27 years. Prior to opening his own business, he sold replacement windows for the Acri Company in the Quad Cities area. In 1980, the defendant started a replacement window business and became an authorized dealer for Thermal Industries. The defendant furnished an office in the basement of his home and began advertising in newspapers and the telephone directory. The defendant hired two women to work in his office and to act as telephone solicitors.
The defendant claimed that he took the orders from Butcher, Houseman and Swanson believing that he could fulfill the contracts. The defendant also testified that he used the money that he received from his customers to pay immediate business and living expenses, hoping to cover the cost of early orders with receipts of subsequent orders. From April 1980 to September 1980 the defendant took in $25,000, while his business expenses amounted to over $16,000. The defendant testified that orders for windows did not arrive as fast as he expected them to come in. He also claimed that he lied to Houseman and Butcher in order to take the pressure off of him, but that he believed that he would soon sell the windows needed to order a load. The defendant stated that he never intended to take money from his customers without delivering windows to them. He also stated that he never avoided contact with them because he believes that he owes them refunds from the window orders. Since his arrest, the defendant has continued in the replacement window business.
Gaylord Rolston, the defendant's brother, testified that he installed siding and two doors on Houseman's home, pursuant to the contract between the defendant and Houseman. Gaylord Rolston also stated that he did not install any windows for the defendant during 1980, but that he did install 30 to 40 windows for the defendant in 1981. Ruth Wilson, an experienced telephone solicitor hired by the defendant, testified that they were unable to arrange appointments with prospective customers, even though they advertised extensively. Arthur Poland, testifying in rebuttal, did not remember whether the defendant called him to ask if Thermal Industries could make a ...