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People v. Miller

OPINION FILED NOVEMBER 1, 1984.

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

v.

MARILYN MILLER, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Lake County; the Hon. William D. Block, Judge, presiding.

JUSTICE HOPF DELIVERED THE OPINION OF THE COURT:

Following a jury trial in the circuit court of Lake County, defendant Marilyn Miller appeals from her conviction of syndicated gambling (Ill. Rev. Stat. 1981, ch. 38, par. 28-1.1), claiming that: (1) she was not proved guilty of syndicated gambling beyond a reasonable doubt; and (2) the trial court improperly admitted a hearsay declaration of the defendant's father which implicated defendant in the charged offense.

On October 14, 1982, defendant and her father, Robert Dugan, were indicted for the offense of syndicated gambling (Ill. Rev. Stat. 1981, ch. 38 par. 28-1.1), for events which transpired between July 13 and September 10, 1982. The charges against Robert Dugan were nol-prossed. Testifying for the State, Jon Sandusky, a special agent with the Illinois Department of Law Enforcement, stated that he was conducting an undercover investigation of gambling activities in Lake County during the months charged in the indictment. On July 9, 1982, Agent Sandusky was in the basement of the Green Mill Restaurant, where he had a conversation with Robert Dugan regarding placing bets on a horse race. After asking Dugan whether he had any phone numbers where Sandusky could call in the bets, Dugan wrote down two phone numbers along with the names "Marilyn" or "Deb." Dugan asked what name the agent wanted to use to call in the bets, and Sandusky responded with the name Jon Sanders.

On July 13, 1982, Agent Sandusky called one of the phone numbers given to him by Dugan. A female voice answered the phone, and Sandusky requested to speak with Marilyn or Deb. The woman asked who was calling, and Sandusky replied with the name Jon Sanders and stated that "Bob Dugan said it was okay to call this number." The woman then said, "This is Marilyn, what can I do for you?" Agent Sandusky asked for the betting line on the All Star game, which the woman was unable to get until later that day. Sandusky then requested the figures on a horse race that he had bet on with Dugan on July 8, and the woman responded that "her books showed [Dugan] a $95 winner." Later that afternoon, Sandusky called the same number and asked for Marilyn. The woman who answered identified herself as Marilyn; Agent Sandusky recognized her voice as being the same voice he had talked to earlier. He again asked for the betting line on the All Star game, and the woman provided that information and explained the odds. After hanging up the phone, Agent Sandusky called back several minutes later, again asked for Marilyn and, when she got on the phone, placed several bets totaling $175 on the All Star game. The woman read back the bets and stated something to the effect, "I'll assure one-seventy five." Sandusky also stated he would pick up his $95 from Dugan later. Sandusky testified that he recognized the woman's voice as being that of the woman who had previously identified herself as Marilyn.

Agent Sandusky called the numbers given to him by Dugan three more times in July, placing bets on horse races totaling $550. Each time he called, he spoke to a woman who identified herself as Marilyn.

On August 5, 1982, Agent Sandusky called again and placed bets totaling $170 with the woman identifying herself as Marilyn. Shortly before midnight on August 5, 1982, Agent Sandusky saw Robert Dugan and defendant in the basement of the Green Mill Restaurant. Special Agent Eugenie Dresel was also present. They were all seated at the same table along with defendant's husband, Don Miller. Over defendant's objection, Agent Sandusky testified that Dugan introduced him to defendant by saying, "This is my daughter, Marilyn, the one you call your bets into * * *." After the introduction, Sandusky had a conversation with defendant regarding calling in the bets; Sandusky recognized defendant's voice as being the same voice he had talked to on the telephone.

During the month of August, Agent Sandusky made three more phone calls to bet on horse races, each time speaking to the woman who identified herself as Marilyn. The bets during this month totaled $730. Sandusky testified that the voice of the woman on the phone was the same voice that he had spoken to on previous occasions and was the voice of the woman he had met at the Green Mill Restaurant.

In September, Agent Sandusky made three more phone calls to bet on horses and/or football games, each time placing his bets with the same woman whose voice he recognized as being defendant's, and who identified herself as "Marilyn." The bets during September totaled $750. Sandusky conceded on cross-examination that the person to whom he looked for his winnings or to whom he expected to make his payments was Robert Dugan and not defendant. Sandusky never promised to pay defendant any money.

The record indicates that during the period covered by the indictment, Agent Sandusky placed at least 11 bets totaling $2,375 with the woman he identified as being defendant. In addition to accepting these bets, on at least five occasions defendant advised Sandusky of the dollar amount which he owed to Dugan or which Dugan owed to him.

During a subsequent search of Dugan's home various items were recovered, including two telephones, an adding machine, five ledger sheets containing writing, schedules of sporting events, and a number of sports journals. The parties stipulated that the phone numbers called by Agent Sandusky were registered to the residence of Robert Dugan. Defendant did not testify.

Following the denial of defendant's motion for a directed finding at the close of the State's case, she was found guilty by the jury of syndicated gambling. Defendant's post-trial motion was denied and she was sentenced to a term of two years' probation.

Defendant first argues that she was not proved guilty of syndicated gambling beyond a reasonable doubt because there was no evidence that money was paid or promised to be paid to her. She contends that proof of this fact is essential to sustain a conviction for the offense of bookmaking, as that offense is defined in section 28-1.1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 28-1.1(d)). The State responds that the gist of the offense of bookmaking is the receipt or acceptance of more than five bets totaling more than $2,000, and that the State need not prove that a defendant actually profited or expected to profit from the operation.

• 1-3 The question presented is one of first impression in this State. Section 28-1.1(d) of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 28-1.1(d)) defines the offense of bookmaking as follows:

"(d) A person engages in bookmaking when he receives or accepts more than five bets or wagers upon the result of any trials or contests of skill, speed or power of endurance or upon any lot, chance, casualty, unknown or contingent event whatsoever, which bets or wagers shall be of such size that the total of the amounts of money paid or promised to be paid to such bookmaker on account thereof shall exceed $2,000. Bookmaking is the receiving or ...


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