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04/18/96 PEOPLE STATE ILLINOIS v. ALLEN KLINGENBERG

April 18, 1996

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLANT,
v.
ALLEN KLINGENBERG, APPELLEE.



Chief Justice Bilandic delivered the opinion of the court: Justice Miller, dissenting: Justice Freeman joins in this dissent.

The opinion of the court was delivered by: Bilandic

CHIEF JUSTICE BILANDIC delivered the opinion of the court:

The defendant, Allen Klingenberg, was charged by indictment in the circuit court of Lake County with two counts of official misconduct (720 ILCS 5/33--3 (West 1992)) and one count of theft over $300 (720 ILCS 5/16--1(a)(2)(A) (West 1992)). Following trial, the jury returned verdicts finding the defendant guilty of one count of official misconduct and not guilty of the other two offenses. The trial court entered judgment on the verdicts and sentenced the defendant to 30 months' probation, 500 hours of public service, a $2,000 fine, and 90 days of periodic imprisonment. The appellate court reversed, finding that the verdict convicting the defendant of official misconduct was legally inconsistent with the verdict acquitting him of theft. We allowed the State's petition for leave to appeal. 145 Ill. 2d R. 315.

The record discloses the following pertinent facts. The board of education of J. Sterling Morton School District No. 201 (the board) hired the defendant to fill the position of school district superintendent in April 1992. The contract between the defendant and the board provided that "the Board shall pay reasonable relocation expenses incurred by the Superintendent within one year from the date of this Agreement. In no case shall such expenses exceed $10,000." In May 1992, after assuming his duties as superintendent, the defendant moved from Lake Forest to an apartment within the school district.

In June 1993, the defendant was charged in a three-count indictment with theft and official misconduct. Count I charged him with theft, by deception, of property having a total value in excess of $300. Count I alleged that the defendant committed theft by submitting fictitious vouchers for moving expenses to the board to obtain moving expense reimbursement to which he was not entitled. Counts II and III charged the defendant with official misconduct in that, while acting in his official capacity, he knowingly committed theft. Both official misconduct counts alleged that the defendant committed theft when he submitted fictitious invoices for moving expenses to the board and received reimbursement to which he was not entitled. Count II alleged that the defendant received moving expense reimbursement of $3,520 and count III alleged that the defendant received reimbursement in the amount of $1,015. The jury returned verdicts finding the defendant not guilty of theft and official misconduct, as charged in counts I and II, and guilty of official misconduct, as charged in count III.

The defendant argued in his post-trial motion and on appeal that the conviction for official misconduct could not stand because it was legally inconsistent with the verdict acquitting him of theft. The defendant argued that the theft alleged in count I was the predicate offense for the official misconduct charged in count III. The defendant argued that, if he was not guilty of theft, then he likewise could not be guilty of official misconduct. The trial court determined that the verdicts were consistent, because the theft alleged in count I required proof of value in excess of $300, while the official misconduct charged in count III did not.

The appellate court disagreed with the trial court and reversed the conviction. The appellate court determined, after examining the record, that the jury had to believe that the defendant was guilty of theft over $300 to convict him of official misconduct, as charged in count III. However, the jury acquitted the defendant of such theft when it returned a not guilty verdict on count I. The appellate court concluded that the verdict acquitting the defendant of the predicate offense (theft) was legally inconsistent with the verdict convicting him of the compound offense (official misconduct). Accordingly, relying upon this court's decision in People v. Frias, 99 Ill. 2d 193, 75 Ill. Dec. 674, 457 N.E.2d 1233 (1983), the appellate court vacated the official misconduct conviction. No. 2--93--1471 (unpublished order under Supreme Court Rule 23).

I

We first consider whether the jury's verdict finding the defendant guilty of official misconduct was legally inconsistent with the verdict finding him not guilty of theft. Our courts have held that logically inconsistent verdicts may stand, while legally inconsistent verdicts cannot. People v. Hairston, 46 Ill. 2d 348, 263 N.E.2d 840 (1970). As a general rule, verdicts that acquit and convict a defendant of crimes composed of different elements, but arising out of the same set of facts, are not legally inconsistent. Hairston, 46 Ill. 2d 348, 263 N.E.2d 840. Special scrutiny is required, however, where proof that the defendant committed one offense (i.e., predicate offense) is an essential element of another offense (i.e., compound offense). In cases where the State must prove the commission of the predicate offense to convict a defendant of the compound offense, reviewing courts carefully examine resulting verdicts for inconsistency.

This court has held that verdicts acquitting a defendant of the predicate offense and convicting him of the compound offense are legally inconsistent, and the conviction for the compound offense must be reversed. Frias, 99 Ill. 2d 193, 75 Ill. Dec. 674, 457 N.E.2d 1233; Hairston, 46 Ill. 2d 348, 263 N.E.2d 840; see also People v. Fiore, 169 Ill. App. 3d 601, 120 Ill. Dec. 85, 523 N.E.2d 996 (1988). On the other hand, verdicts convicting a defendant of the predicate offense and acquitting him of the compound offense, if inconsistent, are only logically inconsistent and may stand. People v. Barnard, 104 Ill. 2d 218, 83 Ill. Dec. 585, 470 N.E.2d 1005 (1984); see also People v. Rollins, 140 Ill. App. 3d 235, 93 Ill. Dec. 97, 485 N.E.2d 1307 (1985); People v. Murray, 34 Ill. App. 3d 521, 340 N.E.2d 186 (1975).

A

Applying these principles to the facts presented here, we consider whether the verdicts acquitting the defendant of theft, as charged in count I, and convicting him of official misconduct, as charged in count III, are legally or only logically inconsistent. Under our statutes, a public official commits official misconduct when, "in his official capacity, he *** knowingly performs an act which he knows he is forbidden by law to perform." 720 ILCS 5/33--3(b) (West 1992). In this case, the "act forbidden by law" was theft. Thus, to convict the defendant of the compound offense of official misconduct, the jury had to believe that he was guilty of the predicate offense of theft. Following trial, however, the jury returned verdicts acquitting the defendant of the predicate offense, but convicting him of the compound offense.

The trial court attempted to reconcile the verdicts by finding that the theft charged in count I was not the predicate offense for the official misconduct charged in count III. The trial court reasoned that count I required the jury to find that the defendant committed a theft of property valued in excess of $300, while the official misconduct charged in count III could have been based upon theft of less than $300.

As the appellate court correctly concluded, however, the trial court's attempted reconciliation of the verdicts, while possible in theory, is belied by the record. A careful review of the record reveals that the jury could have convicted the defendant of official misconduct as charged in count III only if it believed that he committed theft of property over $300.

The indictment charging the defendant with official misconduct alleged that the defendant commit theft "in that he submitted a fictitious invoice for moving expenses and received reimbursement in the amount of $1,015 which the defendant knew he was not entitled to." (Emphasis added.) The trial record reveals that count III was based upon two written requests for reimbursement that the defendant submitted to the board. One request sought reimbursement of $425 and the other sought reimbursement of $590. No evidence or arguments were offered at trial to suggest that if a theft occurred, it involved an amount less than $300. Even the instructions and the verdict forms indicated that the jury had to believe that the defendant committed theft in excess of $300 to convict him of official misconduct, as charged in count III. The issues instruction for the official misconduct charge stated: "To sustain the charge of Official Misconduct as to count III, regarding the amount of $1,015.00 ***." (Emphasis added.) Similarly, the verdict for count III specifically noted: "Official Misconduct, count III--$1015.00." In effect, the trial record demonstrates that the jury had to find the defendant guilty of theft in excess of $300 to convict him of official misconduct, as charged in count III.

Under count I of the indictment, however, the jury acquitted the defendant of precisely such a theft. The verdicts convicting the defendant of the compound offense (official misconduct) and acquitting him of the predicate offense ...


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