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People v. Lopez

OPINION FILED DECEMBER 14, 1984.

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

v.

VINCENT C. LOPEZ, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. Christy S. Berkos, Judge, presiding.

JUSTICE PINCHAM DELIVERED THE OPINION OF THE COURT:

Defendant, Vincent C. Lopez, an attorney, was charged in an indictment with theft. (Ill. Rev. Stat. 1981, ch. 38, par. 16-1(a)(1).) In pertinent part, the indictment alleged that on or about April 26, 1968, and continuing thereafter until on or about August 25, 1979, defendant committed the offense of theft in that, as trustee, he knowingly exerted unauthorized control over the property of the Heinemann Family Foundation and the beneficiaries of the Heinemann Family Foundation in the sum of $115,957, with intent to permanently deprive the beneficiaries of the use and benefit of their property.

Following a bench trial, defendant was found guilty and was sentenced to serve 30 months' probation and to pay $90,000 restitution. On appeal, relying on the alleged insufficiency of the evidence, defendant contends that he was not proved guilty beyond a reasonable doubt because: (1) the evidence failed to establish that defendant intended to permanently deprive the foundation or an identifiable class of beneficiaries of their property; (2) defendant treated his withdrawals from the foundation's accounts as loans which he reflected in the foundation's reports and records; and (3) defendant's character and reputation evidence created a reasonable doubt of his guilt. Defendant further contends that there was a fatal variance between the allegations in the indictment and the evidence adduced at trial. We affirm.

The Heinemann Family Foundation was a charitable trust created in 1966 under the terms of the will of Edward Heinemann. The trust income was to be used to assist Christian Science institutions, orphanages, crippled and underprivileged children and animal welfare organizations. Defendant was the president, treasurer, director and sole trustee of the foundation, and he was the only authorized person who could sign for withdrawals from the foundation's accounts. Defendant was thereby able to withdraw money at his discretion from the foundation's accounts at the La Salle National Bank in Chicago. The foundation's assets consisted of $108,637 in cash, stocks, dividends and two parcels of rental income property.

A 1981 audit of the foundation by the Illinois Attorney General revealed that from 1968 to 1979 the foundation's checking and savings accounts were practically depleted. Between 1974 and 1979 defendant signed approximately 25 checks on the foundation's accounts and deposited the money into his personal checking account at another Chicago bank. Most of these checks were made payable to defendant. A few were made payable to cash. The checks varied in amounts from $400 to $10,000. Although $7,615 in charitable contributions was made during the period 1974 to 1979, defendant withdrew $107,300 from the foundation's accounts for his personal use. Sequential check numbers, especially for June 1978 to March 1978, revealed that almost all the checks withdrawn on the foundation's accounts were made payable to defendant. In 1978, on January 12, 13, August 18 and December 6, defendant issued checks to himself in the amounts of $5,000, $7,500, $1,700 and $400. By the end of 1979, defendant had reduced the foundation's accounts from the initial amount of $108,637 to $801. Defendant also sold all the stock, reduced the foundation's interest in its rental property by more than one-half and converted $11,750 of the foundation's rental income to his personal use.

When the defendant withdrew money for his personal use from the foundation's accounts, he drafted unsecured promissory notes in the amount of the withdrawals, which ultimately totaled $122,457. The Attorney General's audit reflected a total repayment by the defendant over an extended period of only $6,000.

As trustee of the foundation, defendant was required under the Charitable Trust Act (Ill. Rev. Stat. 1981, ch. 14, par. 57) to file annual financial reports of the foundation with the Attorney General's office. Defendant did not do so. The reports for 1975, 1976 and 1977 were not filed until December 27, 1978. The annual report for 1978 was not filed until January 25, 1980. No reports were filed for the years after 1978. Following the Attorney General's 1981 audit of the foundation, the instant theft indictment was returned.

Defendant argued before the trial court (as he does on appeal) that although he converted the foundation's money to his personal use, he never intended to permanently deprive the beneficiaries or the foundation of the funds, and that the transactions were loans which were evidenced by his promissory notes and his partial repayments. The trial court rejected this contention.

• 1 Prior to addressing the merits of this appeal, we first resolve the State's threshold contention that defendant's post-trial motion to vacate the finding of guilt was untimely filed and that defendant therefore has waived appellate review of his conviction and sentence. The guilty finding was entered by the trial court on April 20, 1983. Defendant filed a post-trial motion to vacate this finding 72 days later, on June 30, 1983. The State urges that the motion was untimely filed because it should have been filed within 30 days after the guilty finding was entered. Ill. Rev. Stat. 1981, ch. 38, pars. 116-1(b) and 116-2(a).

Final judgment in a criminal case is not entered until the imposition of the sentence. The final judgment in a criminal case is the sentence. (People v. Blakeney (1978), 59 Ill. App.3d 119, 124, 375 N.E.2d 1309.) In the pending case, defendant's post-trial motion was filed on June 20, 1983, long before the date on which sentence was imposed, which was November 22, 1983. The trial court expressly ruled that the motion was timely filed. We will not disturb that finding.

• 2 Turning now to the merits of this appeal, defendant contends that the evidence failed to establish that he intended to permanently deprive an identifiable class of beneficiaries of their interest in the foundation's property. This "speculative interest," defendant posits, fails to satisfy the statutory element of ownership as that word is used in the criminal code. We do not agree. The Illinois theft statute (Ill. Rev. Stat. 1981, ch. 38, par. 16-1) reads, in pertinent part:

"A person commits theft when he knowingly:

(a) Obtains or exerts unauthorized control over the property of the owner * * *."

An "owner" is defined as "a person, other than the offender, who has possession of or any other interest in the property involved * * * and without whose consent the offender has no authority to exert control over ...


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