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People v. Lombardi

May 17, 1999


Appeal from the Circuit Court of Du Page County. No. 97-CF-1288 Honorable George J. Bakalis, Judge, Presiding.

The opinion of the court was delivered by: Justice McLAREN


The defendant, Rosemarie Lombardi, appeals her conviction of theft (720 ILCS 5/16--1(a)(1) (West 1996)) and sentence of 24 months' probation. We affirm.

In June 1997, the defendant was charged by indictment with one count of theft, alleging that the defendant exerted unauthorized control of currency exceeding $300 from Tamarac Townhouse Association, intending to permanently deprive the association of the benefits of such property. A bench trial began on September 5, 1997.

Jose Miguel Diokno, a board member of the Tamarac Townhouse Association (Tamarac), located in Addison, Illinois, testified that the defendant was elected to the board of directors of Tamarac sometime before July 1994. In January 1997, the defendant took over Tamarac's financial affairs. Although Tamarac's by-laws permitted board members to receive compensation, no oral or written agreement existed between Tamarac and the defendant authorizing compensation for the defendant's services.

Andrea Kozyra, another board member of Tamarac, corroborated Diokno's testimony that there was no agreement to compensate the defendant for her services. Further, the defendant never told Kozyra that she withdrew $4,500 from the Tamarac account as compensation for her services.

The State introduced evidence of the defendant's alleged withdrawals from Tamarac's St. Paul Federal (St. Paul) bank account. People's exhibit No. 1 was a history of Tamarac's account from January through March 1997; exhibit No. 2 consisted of copies of Tamarac's checks processed by St. Paul for the same period; exhibit No. 3 consisted of copies of deposit and withdrawal slips of the Tamarac account from January through April 1997; exhibit No. 4 consisted of Tamarac's checking account statements from January through April 1997; exhibit No. 5 was a summary of the information contained in exhibits one through four prepared by the State; exhibit No. 7 consisted of Tamarac's financial statements from January 1 through May 1997; and exhibit No. 9 consisted of Tamarac's bank statements retrieved by the Addison police from the defendant. Exhibits Nos. 1 through 4 revealed cash withdrawals and checks made out to the defendant totaling $4,600. The defendant offered receipts in the amount of only $200. Exhibit No. 7 did not show any compensation paid to the defendant.

Charles Christian Dvorak, corporate vice-president of St. Paul, was responsible for programming and systems development. Dvorak had held this position for over 4 years and had worked in the data processing area for over 10 years. According to Dvorak, St. Paul's computer system consisted of three separate systems: an IBM mainframe (the host computer and repository for all customer records), a Tandom computer system (which processed automated teller machines and point of sale transactions), and a Compaq system (a teller platform system). All three systems were connected. The IBM mainframe was less than two years old and used software specifically designed for banks such as St. Paul. In fact, this software was used by other banking institutions. The Tandom system used A.C.I. software, and the Compaq computers used a specialized bank transaction software to link the tellers of all 54 branch offices with the IBM mainframe. The Compaq software was used by over 500 banking institutions.

Dvorak also testified that the computer systems were audited by three different auditing entities: an outside auditor (Ernst & Young); internal auditors; and a federal regulatory agency (the Office of Thrift Supervision). An electronic processing auditor also audited the data processing systems for integrity and accuracy. In addition, tellers and each branch balanced every day, and these balances were then checked against the IBM mainframe.

Dvorak explained that People's exhibits Nos. 1 and 4 were account histories printed from the St. Paul mainframe computer system in conjunction with the teller platform computer system. Exhibit No. 1 was an account history for January through March 1997, used internally by St. Paul, and exhibit No. 4 was an account history for January through April 1997 mailed to the customer monthly. Both exhibits displayed Tamarac's account number. The information contained in both exhibits Nos. 1 and 4 was entered into the St. Paul computer system immediately and instantaneously updated information stored in the IBM mainframe. Teller transactions updated the IBM mainframe instantaneously, and checks cleared daily by the "fed" were posted and also updated in the IBM mainframe daily. Bank tellers and other bank personnel entered transactions into the St. Paul computer system immediately as it occurred.

According to Dvorak, attached to Tamarac's customer statements (exhibit No. 4) were copies of checks written on the account and copies of withdrawal and deposit slips for the statement period. The check images were created by a machine which read the checks and created the photocopy-like images. The withdrawal and deposit slips were produced at the teller window by the bank teller platform system. Dvorak stated that the information contained in both exhibits Nos. 1 and 4 was created in the normal course of bank business. He further stated that no unauthorized person has ever gained access to the St. Paul computer system.

Janet Schuda, St. Paul operations manager and former branch manager, testified that she was familiar with the creation and keeping of business and transaction records for St. Paul. She explained that exhibit No. 2 consisted of microfilm copies of actual checks processed on the Tamarac account and exhibit No. 3 consisted of copies of deposit and withdrawal slips from the Tamarac account, filled out at the time of the transaction and presented to tellers at St. Paul. Schuda also testified that exhibits Nos. 1, 2, and 3 were records made and kept in the ordinary course of business. People's exhibit No. 4 contained the same information as that contained in exhibit No. 1. The information contained in exhibits Nos. 1, 2, 3, and 4 were true and accurate copies. Schuda stated that she produced part of exhibit three and checked all of the other exhibits.

Detective David Wall of the Addison police department testified that the defendant gave him certain documents (People's exhibit No. 9) in May 1997. The documents consisted of Tamarac bank statements from January through April 1997, records of assessments and receipts, and Tamarac records relating to bills, receipts, and invoices.

Wall also testified that the defendant admitted that she did not have an agreement with Tamarac to provide her with compensation for her services. The defendant also admitted that she took about $2,000 from Tamarac, explaining that her father was ill and that she used the money to pay for her father's unpaid medical bills. The defendant then provided the following written statement:

"At the beginning of this year my father became very ill, diagnosis tumor and therefore needed chemotherapy treatments above and beyond health insurance coverage. I at some point [copy is unclear] miscellaneous expenses incurred about $2,000 overage. After receiving receipts and documents to help cover expenses of health. I am truly sorry, I did not intentionally deprive anyone and after realization would like to make restitution for what is truly not mine to keep."

At the close of the State's case in chief, the trial court denied the defendant's motion for a directed finding of not guilty. The defendant called two character witnesses and then rested. The defendant did not testify. On September 19, 1997, the trial court heard closing arguments by both sides and continued the cause to September 29, 1997, for a ruling.

However, on September 29, 1997, the trial court noted that the defendant had not filed a jury waiver and stated that it wanted to correct the matter before it took the case under advisement. Defense counsel told the trial court that the defendant did not wish to waive her right to a jury trial and that she wanted the trial court to render its decision. The trial court admonished the defendant that she had a right to a trial by jury, which meant that a panel of 12 jurors would be selected to hear the evidence and make a determination of her guilt or innocence. The trial court told the defendant that if she wanted a jury trial it would give her one but that she could not have it both ways. Defense counsel asked the Judge to give the defendant time to think about it and asked that the matter be postponed until October 6, 1997.

On October 6, 1997, defense counsel told the trial court that he had explained to the defendant her rights on numerous occasions and the defendant wanted the court to render its judgment. The trial court explained to the defendant again that, if she wanted a jury trial, it would declare a mistrial and a trial with a jury would proceed, but that if she wanted it to render a decision she would have to ...

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