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The People of the State of Illinois v. Keith Kotero

September 28, 2012

THE PEOPLE OF THE STATE OF ILLINOIS,
PLAINTIFF-APPELLEE,
v.
KEITH KOTERO,
DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. Nos. 07 CR 4407, 4410-4414 Honorable Thomas M. Tucker, Judge Presiding.

The opinion of the court was delivered by: Justice Connors

JUSTICE CONNORS delivered the judgment of the court, with opinion. Presiding Justice Harris and Justice Quinn concur in the judgment and opinion.

OPINION

¶ 1 Following a bench trial, defendant was convicted of five counts of theft (720 ILCS 5/16-1(a)(2) (West 2006)) and one count of official misconduct (720 ILCS 5/33-3(b) (West 2006)). On appeal, defendant argues that his theft convictions must be vacated because they resulted from the same act as his official misconduct conviction. Alternatively, he argues that his convictions were based on certain evidence for which no proper foundation had been established and that the State failed to prove him guilty of one count of theft beyond a reasonable doubt. For the following reasons, we vacate defendant's conviction for official misconduct and affirm his convictions for theft.

¶ 2 BACKGROUND

¶ 3 Defendant Keith Kotero worked as a parking enforcement officer for the Village of Oak Park (Village). Among other things, defendant was responsible for installing and removing "Denver boots," which temporarily immobilized cars after the owners received a certain number of parking violations, and maintaining the files in those cases. On five separate occasions in August and September of 2006, defendant allegedly told several people whose vehicles had been booted that if they paid him a certain amount of money in cash, then he would arrange to have the boot removed from their cars. The State alleged that although defendant removed the boots, he never gave the money to the Village. The State charged defendant with five counts of theft and one count of official misconduct.

¶ 4 During a bench trial, the State called Wayne Moran, director of the Village's adjudication department, to testify. He stated that typically, when a car owner discovered that his car had been booted, the owner would contact defendant. Defendant would then tell the owner that he could seek a hearing to determine whether the boot was properly placed or that he could pay the outstanding fines and fees from the unpaid parking tickets and have the boot removed. In the latter case, defendant was to direct the car owner to the cashier's office to pay the fines by cash, check, or credit card. The cashier also recorded payments in a computer system, indicating the method of payment used.

¶ 5 Defendant had no authority to accept payments for parking fines and fees personally. Nor did he have the authority to negotiate partial-payment settlements for outstanding fines. In fact, Moran stated that the Village required full payment of all fines to have a boot removed. Moran also explained that by the time an owner was eligible for a boot, his outstanding parking tickets had been finally adjudicated. The only Village official that had the authority to determine whether a finally adjudicated ticket could be "nonsuited" was an administrative law judge.

¶ 6 Michael Duebner then testified as the former information technology director for the Village. He stated that his department developed a software program to manage the parking ticket process, including notification to offenders, booting status, and adjudication of the tickets. The software program had two components: the financial side and the adjudication side. The cashier's office employees who processed payments had access to the financial side. Employees like defendant, who worked with adjudications and the booting process, only had access to the adjudication side. He had a personal login and password for accessing the program. Defendant's access gave him the ability to view the details of tickets, to void tickets, and to produce lists of people eligible for a boot. Additionally, defendant had the "ability to non-suit tickets" in the software program and he was required to "enter comments as to why those tickets were nonsuited." Whenever a ticket is nonsuited or voided, an offsetting transaction is generated on the financial side.

¶ 7 Duebner testified that he generated a report showing those transactions that were nonsuited by defendant between January and October of 2006 at the request of an Oak Park police department detective. Defense counsel objected to the introduction of the report at trial because he contended that no foundation had been laid. He also contended that the reports were hearsay that did not fall under the business records exception. The court overruled the objection.

¶ 8 Duebner testified that the report showed that a woman named Stephanie Skrine had 13 parking tickets and all of them were nonsuited under defendant's account on August 25, 2006. The report indicated that the tickets were nonsuited because of a "system error" that resulted from the vehicle having temporary license plates. However, Duebner testified that after further inspection, he discovered that the license plates were not temporary and the tickets were improperly nonsuited. The offsetting entries on the financial side of the program appeared as debit transactions, effectively reversing the fines as though the tickets had been wrongfully issued and indicating that no money was received by the Village as payment for those tickets.

¶ 9 Similarly, the program showed that Michael Mejia had seven tickets and each of them was voided under defendant's account on August 21, 2006, because of a system error involving temporary license plates. Nevertheless, the plates were not temporary. The program also showed that no money had been received as payment for Mejia's tickets and that the fines had been reversed. The program showed the same results for parking tickets issued to Euphoria Knight and Jaunche Draine. Tickets issued to David Bouie had not been nonsuited. On cross-examination, Duebner admitted that although the transactions appeared under defendant's account, he never saw defendant perform those transactions nonsuiting the tickets.

¶ 10 Officer William Cotter testified that he began investigating defendant after receiving a complaint that the process of releasing a boot from the complainant's car "wasn't handled properly" by defendant. Cotter discovered that defendant had nonsuited tickets in more than 150 cases over the course of several years. When Cotter tried to pull the files in those cases, he found that they were missing entirely. Cotter found 11 of the more recent case files in a garbage can underneath defendant's desk and 4 more case files on top of defendant's desk. None of those case files contained the proper receipts and release forms required before a boot may be removed.

¶ 11 Skrine testified that when she discovered that her car had been booted, she contacted defendant. When she met with him, he told her that she owed $1,000 in outstanding parking tickets. Defendant told her that she could pay him $400 to settle the tickets, but she had to pay him in cash. He told her that she could not pay by check "because a person could stop payment on a check" and she could not pay by credit card "because a person could dispute the charges." Skrines testified that she was "kind of freaked out because [defendant] wanted $400 cash," but she called her brother to borrow the money anyway. She brought the money to defendant later that day and he gave her a receipt. However, a week later, she got a letter from the Village stating that her "car was still on the boot list." Skrines testified on cross-examination that defendant "assured [her] that [her] car was no longer on the boot list."

ΒΆ 12 Mejia then testified that his car also was booted after accumulating many unpaid parking tickets. He called the Village and spoke to someone identifying himself as defendant. Defendant told him that if he could not pay the entire amount he owed for the tickets, they could "work something out," but Mejia had to pay in cash. Mejia stated that he owed approximately $600 for the unpaid parking tickets, but he paid defendant about $400 in cash to satisfy the debt. Defendant then gave him a receipt with the Village seal that ...


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