APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION
516 N.E.2d 280, 162 Ill. App. 3d 866, 114 Ill. Dec. 125 1987.IL.1437
JUSTICE CAMPBELL delivered the opinion of the court. BUCKLEY and O'CONNOR, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE CAMPBELL
Following a bench trial, defendant, John Panagiotis, district sales manager for U.S. Air, Inc., was convicted of eight counts of forgery and two counts of theft, arising out of his issuance of free airline tickets to barter companies in exchange for promotional items. Defendant was sentenced to concurrent terms of 30 months' probation, with 250 hours of public service during the first 18 months of probation, a $2,000 fine, costs, and 90 days in Cook County jail following two years of probation. On appeal, defendant contends that: (1) the indictment under which he was charged was void due to its failure: (a) to adequately describe the allegedly stolen property in the theft counts; and (b) to adequately describe how the airline tickets were capable of defrauding third parties in the forgery counts; (2) the State failed to prove him guilty beyond a reasonable doubt of theft and forgery; and (3) in the alternative, one of the convictions must be vacated because both arose out of the same physical act. For the following reasons, we vacate the theft conviction, affirm the forgery conviction, and remand the cause for resentencing.
The record sets forth the following facts pertinent to this appeal. In 1979, defendant was hired as the Chicago area district sales manager for U.S. Air, Inc., by James Disanto, director of sales for U.S. Air. Defendant's district sales office was located at 333 N. Michigan Avenue, where he worked with Jan Erbling, office secretary, and Len Kyle, sales representative. The duties of a district sales manager for U.S. Air include managing people, calling on accounts, collecting information, and engaging in promotional activities. A district sales office is an administrative office only. It does not have authorization to issue airline tickets. Instead, tickets are issued at city ticket offices , airport ticket offices or travel agencies. However, a district sales office is authorized to offer free promotional tickets provided that company policy is followed.
U.S. Air policy requires that several approval steps be followed before a free promotional ticket is issued. First, the sales manager must agree that the promotion is worthwhile to U.S. Air. Then the regional sales director and either the director of field sales or the director of sales planning at the Washington office must approve the promotion. Barter transactions, whereby U.S. Air trades airline tickets for other items or services, must be approved by the senior vice-president of finance and the senior vice-president of marketing. Once a barter transaction is approved, the district sales office is notified. The district sales manager then issues an "S.A. 55" authorization form to either the airport ticket office or the city ticket office for ticketing. This policy has been in effect since 1981.
Jan Erbling, defendant's office secretary, testified that at defendant's direction, she had issued hundreds of U.S. Air tickets and had validated them with plates marked: "U.S. Air, Inc. Chicago, IL ATO 01" and "U.S. Air, Inc. Chicago, IL ATO 02," even though the Michigan Avenue office is not an airline ticket office as the "ATO" designation indicates. Either defendant or Len Kyle, the sales representative, supplied the blank ticket stock and brought the validator plate and validator tabs into the Michigan Avenue office. In addition, defendant had signed the SA-55 authorization forms indicating that issuance of the tickets had been approved by the director of field sales.
Stephanie Carter, lead agent at the U.S. Air airport ticket office, testified that validating plate "ATO 01," used by defendant's office, had been replaced in April 1981 by plate "ATO 17." The "ATO 01" plate was to have been destroyed at that time. In addition, validating plate "ATO 02," also used by defendant's office, had been reported lost and had been replaced with plate "ATO 06." Carter further stated that plates bearing the letters "ATO" were to be used only at airline ticket offices.
James Disanto, director of sales for U.S. Air through 1982, testified that a district sales manager, such as defendant, was not authorized to either issue airline tickets or to order a CTO ticket validating plate unless there was a city ticket office in that sales manager's district. There was no CTO in defendant's district. Disanto further stated that defendant had never told him about his transactions with the barter companies. Confirming Disanto's testimony, Robert Parker, Disanto's successor, testified that defendant had never been authorized to either purchase validator plates or to issue free tickets.
Loren Kennedy, manager of Chicago Trade Line, a barter exchange, testified that he had conducted business with defendant from mid-1982 to 1983. Chicago Trade Line's member companies traded goods and services with each other. Chicago Trade Line then received commissions on the trades. During Chicago Trade LIne's association with defendant, it had received approximately 19,000 to 20,000 free U.S. Air airline tickets in exchange for jewelry, home items, video cassette recorders, rental cars, and restaurant coupons, which defendant either picked up himself or had delivered to his house.
Deborah Baxter, manager of Marketing Decisions, another barter company, commenced business with defendant in September 1982. Marketing Decisions acted as a middleman in negotiating trades of goods and services between companies. Originally, Baxter proposed a trade with defendant of advertising in exchange for airline tickets. Although Baxter received the airline tickets, the advertising was never placed. Instead, in exchange for the airline tickets, Baxter allowed defendant use of Baxter's charge account with Barter Systems, another barter company. Defendant used the account to acquire poinsettia plants as gifts for his employees during the holiday, restaurant credits, and televisions. In June 1983, defendant asked Baxter to prepare a fictitious statement indicating that advertising had been placed. As the result of an internal audit of the Chicago district sales office in June 1983, defendant was arrested for the theft and forgery of airline tickets from U.S. Air, Inc. Following a bench trial, he was convicted of both offenses and sentenced. Defendant appeals his convictions.
Defendant first contends that the indictment which charged him with theft and forgery was void due to its failure to specifically describe the nature and elements of the offenses charged. In both a pretrial motion to quash the indictments and a post-trial motion in arrest of judgment, defendant alleged that the indictments were void due to vagueness. The trial court denied both motions.
The standard for review of the sufficiency of a charging instrument which has been objected to at trial is whether the nature and elements of the offenses charged are in accordance with section 111-3 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1985, ch. 38, par. 111-3). (See People v. Lutz (1978), 73 Ill. 2d 204, 213, 383 N.E.2d 171.) Section 111-3(a) provides:
"(a) A charge shall be in writing and allege the commission ...