Appeal from the Circuit Court of Winnebago County; the Hon.
Robert C. Gill, Judge, presiding.
JUSTICE LINDBERG DELIVERED THE OPINION OF THE COURT:
Defendant, Larry E. Davis, was convicted of theft by deception (Ill. Rev. Stat. 1983, ch. 38, par. 16-1(b)(1)) after a jury trial. He was sentenced by the circuit court of Winnebago County to a term of five years' imprisonment. He contends his conviction should be reversed because the evidence failed to show that he obtained the property from the alleged victim by deception. He suggests the evidence may have established the offense of attempt but that he was not so charged.
The evidence showed that in February 1983 defendant had been imprisoned in the Sheridan Correctional Center. He became acquainted with Curtis Lee Cottrell, a Department of Corrections counselor at the prison. He also met Kenneth Sanders, an inmate at Sheridan.
In March of 1983, Cottrell informed defendant that he could obtain defendant's release from the Department of Corrections through his influence. Defendant was in fact released on May 6, 1983. He had served a little over eight months in prison. He had originally been sentenced to a term of three years.
Immediately following defendant's release, Cottrell approached defendant, claiming that defendant was indebted to him for his release and demanding repayment. He informed defendant that he had the power to revoke his parole and to send him back to the Department of Corrections and threatened to do so unless defendant gave him $2,000, which was supposedly the amount Cottrell had expended for defendant's release.
Since defendant could not obtain the money, Cottrell proposed an alternative plan. Cottrell and defendant would approach inmates in the Department of Corrections and propose obtaining their early release for money. Defendant accordingly contacted Kenneth Sanders at Sheridan and obtained the name of Ethel Roberts.
Ethel Roberts was a friend of Kenneth Sanders. She took care of the rentals of his house and apartments while he was in prison. Near the middle of May defendant made a number of phone calls to Roberts advising her that he could obtain Sanders' release from the Department of Corrections for $4,000.
Roberts knew that defendant was a "phony." She did not believe he could obtain an early release for Sanders. On the advice of her attorney she contacted the Illinois Department of Law Enforcement (IDLE). Agent Ron Andrei of IDLE came to see her on May 18, 1983.
On Andrei's advice, Roberts arranged to meet defendant at the Clock Tower Inn in Rockford. She told defendant that she would be with her son-in-law who would in fact be Agent Andrei.
On May 20, 1983, Andrei picked up Roberts at her house and took her to his office. He briefed Roberts. He would pretend to be her son-in-law, named Michael, and he would be carrying the supposed payment. Roberts was wired with a number of microphones placed on her person. Andrei prepared a white envelope, containing $1,150 from the IDLE "official advance fund," prerecording the serial numbers of the bills.
Andrei and Roberts drove to the Clock Tower Inn parking lot, parking near an IDLE van which contained the video equipment which was to tape the meeting with defendant. Other IDLE agents were deployed in the area.
Cottrell had driven defendant to the Clock Tower Inn in his automobile. Cottrell stayed in the car, slouching down while defendant left the vehicle and walked into the foyer.
Andrei and Roberts met defendant in the hallway of the Clock Tower Inn. Roberts introduced Andrei as her son-in-law. The three of them went to the area of Andrei's car in the parking lot. Their conversation was recorded and the meeting at the parking lot was videotaped.
At the parking lot, defendant told Roberts and Andrei that he could obtain a full pardon for Kenneth Sanders from Governor Thompson, through his contact, his uncle Sam Perry, a Federal judge, for $5,000. In his role as Roberts' son-in-law, Andrei pressed defendant for detailed explanations of the process, expressing concern over Roberts' money.
When Andrei thought he had enough for an arrest he removed his vest, a prearranged signal for other officers in the area to come in and arrest defendant. When Andrei saw Agent Crow drive up in response to the signal, he handed defendant the white envelope with the money. At that point defendant was ...