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People v. Bovio





Appeal from the Circuit Court of Kane County; the Hon. Joseph McCarthy, Judge, presiding.


Following a jury trial, defendant Arthur Bovio was found guilty of theft by deception (Ill. Rev. Stat. 1981, ch. 38, par. 16-1(b)) and deceptive practices (Ill. Rev. Stat. 1981, ch. 38, par. 17-1(B)(d)). Defendant was sentenced to two years' imprisonment on the theft-by-deception offense, and the judgment on the verdict for deceptive practices was vacated by the trial court as constituting a lesser-included offense which arose from the same act as the theft by deception.

Defendant appeals, contending that (1) he was not proved guilty beyond a reasonable doubt; and (2) the trial court erred in admitting computer-generated bank records without a proper foundation having been laid.

On September 29, 1981, defendant was indicted by the grand jury. Count I of the indictment charged defendant with deceptive practices (Ill. Rev. Stat. 1981, ch. 38, par. 17-1(d)), alleging that he, with intent to defraud, delivered a check in payment for a load of diesel fuel knowing that the check would not be paid. Count II charged defendant with theft by deception (Ill. Rev. Stat. 1981, ch. 38, par. 16-1(b)), alleging that by deception defendant obtained control over the diesel fuel by paying for it with a check knowing that there were insufficient funds in his account to cover the check.

Only the parts of the trial testimony pertinent to the issues raised on appeal will be discussed. The State's first witness was John Robson, president of Cooksy Oil Company. Robson testified that on Wednesday, April 15, 1981, a man identifying himself as Arthur Bovio called to place an order for a load, approximately 6,900 gallons, of diesel fuel. Based on the request, Robson hung up, computed a price, and called Bovio back with the figure of $7,728. In line with the company's policy, Robson told Bovio that since he was a new customer, payment must be made by cashier's or certified check. Bovio reportedly agreed to comply with this requirement. In reliance on that conversation, Robson called Chester Miroslaw, his manager, and ordered that a load of diesel fuel be transported the next day to a station at Route 47 and Jericho Road in Sugar Grove, Illinois.

Robson testified that on the following day, after receiving a call from Miroslaw, Robson called Bovio and asked why neither a cashier's nor a certified check was there for the fuel hauler to pick up. Bovio allegedly said that there was a registered check, that it was just as good as a certified check, and that there were funds in the bank to cover it. Robson tried to call the drawee, the Bank of Sugar Grove, to confirm sufficient funds, but the bank was closed. Finally, Robson called Miroslaw and authorized delivery and acceptance of the registered check.

Robson testified that later that day, Bovio called again and asked for a price on a load of gasoline. Robson quoted a price but told Bovio that the gasoline would not be delivered until the check for the diesel fuel had cleared. Bovio allegedly reiterated that the check was good and would clear.

On the following Monday, Robson noticed for the first time that the check was postdated to April 26, 1981. He said that he had the check deposited, instructing the bank to hold it for up to 14 days. On April 27, the check was returned unpaid.

On April 28, Robson called Bovio, telling him that if he did not deliver a certified check in the near future, Robson would institute criminal proceedings. On May 4, Robson received a copy of an automatic stay order announcing Bovio's bankruptcy and listing Cooksy Oil as one of the creditors. Robson testified that on several occasions, he spoke with Bovio over the telephone and in bankruptcy court. During some of those discussions, Bovio allegedly acknowledged the debt and said it would be paid.

Chester Janiga, the fuel hauler, testified that he had orders to deliver a load of diesel fuel to Route 47 and Jericho Road on April 16, 1981, and to pick up a certified check in payment. At the station, he was given a check imprinted with the word "registered." He refused to accept it pending instructions. After calling Miroslaw, he unloaded 4,900 gallons of diesel fuel at the station and delivered the rest to a farm several miles away.

Chester Miroslaw, Cooksy Oil's manager, testified that on April 15, 1981, he received a call from someone at Bovio Automotive. He forwarded the call to Robson because it was from a new customer. Robson later called him to arrange for delivery of diesel fuel with instructions to get a certified check. Miroslaw then made the appropriate arrangements with Janiga.

On April 16, Janiga called Miroslaw, which prompted Miroslaw to call Robson. Acting on instructions from Robson, Miroslaw called Janiga back and said to unload the fuel. Miroslaw further testified that Janiga later returned to the office and delivered the check, bill of lading, and delivery ticket. Miroslaw contacted Robson who picked up the check and other documents.

The State's next witness, Marilyn Long, assistant cashier at the Bank of Sugar Grove, testified that bank customers receive a monthly statement, and if there are any errors on it, the customer is to notify the bank within 10 days. She described the route a check takes once a customer drafts it on an account at the Bank of Sugar Grove and gives it to someone: the payee takes the check to his or her own bank; that bank forwards it to the Federal Reserve Bank; the Federal Reserve Bank processes it and sends it to a data center used by the Bank of Sugar Grove. The data center makes all the computations of transactions for the account. The data center makes and keeps an original microfiche, makes a duplicate microfiche for the bank, and prints out a paper statement for the bank to send to its customer. Ms. Long testified that most banks use the same or a similar system. However, she did not describe the equipment that is used at the data center, or the method that is used there for entering deposits or with-drawals, or the type of program that is used. The microfiche is kept and relied on by the bank in its normal course of business. Ms. Long identified a copy of Bovio Automotive's checking account bank statement for April 1981, People's exhibit No. 5, and said she verified its accuracy by checking it against the bank's microfiche that morning.

Counsel for the defendant objected to the foundation that had been laid for People's exhibit No. 5. The judge overruled the objection and allowed the exhibit into evidence. Defendant's additional objection that the statement contained information of other checks which were not paid was also overruled and ...

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