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April 19, 1994


Appeal from the Circuit Court of Du Page County. No. 91-CF-2244. Honorable Edward W. Kowal, Judge, Presiding.

Rehearing Denied May 17, 1994.

Colwell, Inglis, Quetsch

The opinion of the court was delivered by: Colwell

JUSTICE COLWELL delivered the opinion of the court:

Defendant, Carlos Moran, was convicted after a bench trial of theft by deception (Ill. Rev. Stat. 1989, ch. 38, par. 16-1(b)(1) (now 720 ILCS 5/16-1(b)(1) (West 1992))) for allegedly presenting a falsified document to Chicago Title and Trust Company, Inc. (Chicago Title), in order to obtain a disbursement of funds. The trial court sentenced defendant to 24 months' probation. He also ordered defendant to pay restitution to complainant, Forest Drywall (Forest), in the amount of $6,477. Defendant raises two issues on appeal. First, he contends that the State did not prove him guilty of theft by deception beyond a reasonable doubt because it did not prove that he intended to deprive Chicago Title of its property permanently. He argues in the alternative that the trial court erred in awarding restitution to Forest because Forest was not a victim. We affirm in part and vacate in part.

On September 25, 1991, the State filed a three-count indictment against defendant. Count I charged defendant with theft for knowingly exerting unauthorized control over the property of Forest Drywall (Ill. Rev. Stat. 1989, ch. 38, par. 16-1(a)(1) (now 720 ILCS 5/16-1(a)(1) (West 1992))); count II charged defendant with theft by deception; and count III charged defendant with forgery for, with the intent to defraud, knowingly making a document apparently capable of defrauding another (Ill. Rev. Stat. 1989, ch. 38, par. 17-3(a)(1) (now 720 ILCS 5/17-3(a)(1) (West 1992))).

The State presented the following evidence at defendant's March 30 and March 31, 1992, trial. Defendant was the president of Gayle Homes, a company that builds houses. Old Kent Bank (Bank) loaned Gayle Homes the funds with which to build a house on a parcel of property at 1504 Wiesbrook, Wheaton. On June 28, 1990, Gayle Homes entered into an agreement with the Bank entitled "Construction Loan Escrow Trust" (escrow agreement) whereby Chicago Title was to disburse the loan funds to defendant when defendant supplied it with certain documentation. Defendant was required to supply a sworn statement listing the contractor's contracts with subcontractors and suppliers. Defendant was also required to supply a waiver of mechanic's lien demonstrating that a subcontractor had performed certain work and had been paid for that work.

Ronald Vogel, a title officer at Chicago Title, testified that Chicago Title acted as the escrow agent for funds that defendant and Gayle Homes had borrowed from the Bank in connection with the construction of the home at 1504 Wiesbrook. Defendant subsequently submitted to Chicago Title four sworn documents: "Waiver of Lien to Date," dated September 21, 1990; "Sworn Statement for Contractor and Subcontractor to Owner," also dated September 21, 1990; "Final Waiver of Lien," dated November 9, 1990; and another sworn statement, dated November 9, 1990. All four of these documents listed Gayle Homes as the drywall subcontractor. The two lien waiver documents listed Allied Drywall as the supplier of the drywall supplies.

According to Vogel, the funds in escrow at Chicago Title actually constituted funds that defendant had borrowed from the Bank. Vogel also testified that it was common for a general contractor to obtain funds by submitting lien waivers to Chicago Title and then to pay the subcontractors out of those funds rather than paying the subcontractors before receiving the money. However, Chicago Title would not disburse money to a contractor if it knew that the documentation that the contractor had supplied was false.

Judith Burns, escrow administrator at Chicago Title, testified that defendant submitted documentation to her on September 21, 1990, in order to obtain a partial disbursement. Defendant supplied a waiver of lien which stated that Gayle Homes had provided $11,500 worth of drywall supplies and services. Defendant requested a partial payment from Chicago Title of $10,000 based on that waiver. Burns watched defendant sign the waiver of lien. She then notarized the document and disbursed $56,400 to defendant, based on several waivers. Burns testified that sometimes a general contractor will submit a lien waiver that states that the general contractor performed certain work, when, in fact, the general contractor has already paid or is planning to pay a subcontractor for that work. According to Burns, this practice is common for carpentry and painting. Although such a practice is rare for drywalling, she had seen it done.

Carolyn Tsironis, a construction escrow clerk with Chicago Title, testified that on November 9, 1990, defendant submitted a document to her which stated that Gayle Homes had performed drywalling on a home at 1504 Wiesbrook. This transaction took place immediately prior to the closing on the sale of the property. Tsironis had never known a general contractor to obtain funds by stating that it had performed certain work and then use those funds to pay a subcontractor that actually did the work.

John Lipuma, the owner of Forest, testified that in August 1990 defendant contracted with Forest to drywall the house at 1504 Wiesbrook. Lipuma admitted that his proposal, which constituted the only written contract between Forest and defendant, was unsigned. Lipuma testified that Forest subsequently completed the work at that house. Oswego Building Supply supplied the materials. To Lipuma's knowledge, no other company performed drywall work on that house. Forest billed Gayle Homes for $8,372. Lipuma testified that he requested payment from defendant on numerous occasions and, while defendant continually promised to pay, defendant made no payments to Forest until after he had been indicted. Defendant requested that Lipuma execute a waiver of lien, but Lipuma refused to do so before being paid. Lipuma never gave defendant permission to represent that Forest had been paid for the drywall job. Lipuma obtained a mechanic's lien against the home in January 1991. Lipuma filed suit against defendant in May 1991 in order to collect $8,782 for work that Forest had performed. This lawsuit was pending when Lipuma contacted the State's Attorney about the matter.

Lipuma admitted that Forest returned to do additional drywall work on the house after defendant informed Forest that the job was incomplete. Lipuma did not remember defendant contacting Forest a second time about incomplete work. According to Lipuma, defendant never informed Forest that he wanted to set off the cost of having another company complete the job.

Craig Wargo, an employee of Forest, testified that defendant agreed over the telephone to hire Forest for the drywall work at 1504 Wiesbrook. Forest completed the project during the last two weeks of August. Wargo personally walked through the house and verified that the job was complete. At some point, defendant had asked ...

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