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March 4, 1994


Appeal from the Circuit Court of Kane County. No. 90-CF-1422. Honorable Melvin E. Dunn, Judge, Presiding.

Petition for Leave to Appeal Denied October 6, 1994.

McLAREN, Inglis, Geiger

The opinion of the court was delivered by: Mclaren

JUSTICE McLAREN delivered the opinion of the court:

The defendant, Carol Butcher, was charged by information on September 14, 1990, with theft (Ill. Rev. Stat. 1989, ch. 38, par. 16-1(a)(2) (now 720 ILCS 5/16-1(a)(2) (West 1992))) and deceptive practices (Ill. Rev. Stat. 1989, ch. 38, par. 17-1 (B)(d) (now 720 ILCS 5/17-1(B)(d) (West 1992))) for buying a computer with a subsequently dishonored check. Following a bench trial, the defendant was found not guilty of theft but guilty of deceptive practices. She was sentenced to 30 months of probation and 200 hours of community service. This appeal followed, and we affirm.

The defendant's sole contention on appeal is that she was not proved guilty beyond a reasonable doubt. The standard for reviewing such a claim is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. ( People v. Smith (1992), 149 Ill. 2d 558, 565, 174 Ill. Dec. 804, 599 N.E.2d 888; People v. Collins (1985), 106 Ill. 2d 237, 261, 87 Ill. Dec. 910, 478 N.E.2d 267.) The reviewing court must not substitute its judgment for that of the trier of fact, particularly as to matters of credibility and the weight to be given disputed evidence. People v. Herrett (1990), 137 Ill. 2d 195, 206, 148 Ill. Dec. 695, 561 N.E.2d 1.

We are satisfied that there was sufficient evidence from which the trial Judge, as the trier of fact, could rationally find the defendant guilty of deceptive practices beyond a reasonable doubt.

Greg Parker testified for the State that he conducted a court-ordered receivership auction for Dunning's Auction Service on May 19, 1990, during which the defendant was the successful bidder on a computer.

The defendant tendered to Dunning's a check in the amount of $2,982 for the computer, and the check was deposited in the firm's bank on May 21, 1990, the first business day following the Saturday auction. The check was returned unpaid for lack of sufficient funds. Parker said he redeposited the check a second time, and again it was dishonored. Parker said he sent the defendant a certified letter regarding the returned check. He said the defendant called him on June 14, 1990, and explained that her check was dishonored because one of her clients had given her a bad check, which resulted in her business account having insufficient funds to cover the check for the computer. Parker said the defendant asked if she could return the computer, and he told her that he could only take the computer back on reconsignment. He told the defendant that he could not guarantee what price she might get for the computer on re-auction. The computer was not returned to Dunning's.

David Franzen, an official of Harris Bank in Roselle, testified that the computer check was written against an account held by the defendant under the business name of CCSI. The State introduced a copy of the defendant's bank statement for May 1990, showing that from May 18 through the end of the month the defendant's CCSI account had insufficient funds to cover the computer check. The statement indicated that the defendant made deposits to the CCSI account on May 19, 21, 22 and 23, but the account was still $580 short of the amount needed to cover the computer check.

Franzen said his bank received a stop-payment order for the computer check from the defendant on May 26. Franzen said the reason stated for the stop payment was that the merchandise had been returned.

The defendant testified that on the day of the auction she knew that she did not have sufficient funds in her business account to cover the check she wrote for the computer, but she denied that she intended to defraud Dunning's. She said that she intended to make sufficient deposits to her CCSI account to cover the check. She said that she received a check for $636 from a client, Cinco, which was very slow in paying its bills to her. She decided not to deposit that check into her CCSI account because she suspected it might not be good, and she wanted to avoid service charges. She said she called Cinco's bank and learned that the check was not good.

The defendant put a stop-payment order on the Dunning's check because she knew it would only be returned unpaid a second time. She said she decided to go to Cinco to get her $636 payment. She said she communicated several times with Dunning's by telephone and mail concerning the computer check. She said she called Parker twice to discuss the computer check and offered to return the computer. She said he told her that all sales were final and that he only could take the computer back on reconsignment. Parker said she called him just once. The defendant said she would have returned the computer if they would have taken it back.

The defendant said that she was unable to cover the computer check because she experienced personal, marital and financial difficulties. On cross-examination, she admitted that she had funds from other nonbusiness sources which she deposited into ...

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