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The People of the State of Illinois v. Billie S. Max

November 19, 2012

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
BILLIE S. MAX,
DEFENDANT-APPELLANT.



Appeal from the Circuit Court of the 13th Judicial Circuit, Grundy County, Illinois, Circuit No. 08-CF-71 Honorable Robert C. Marsaglia, Judge, Presiding.

The opinion of the court was delivered by: Justice Carter

JUSTICE CARTER delivered the judgment of the court, with opinion.

Presiding Justice Schmidt and Justice McDade concurred in the judgment and opinion.

OPINION

¶ 1 After a jury trial, defendant, Billie S. Max, was convicted of theft in excess of $10,000 (720 ILCS 5/16-1(a)(1)(A), (b)(5) (West 2006)) and sentenced to a period of probation and county-jail time and ordered to pay restitution. Defendant appeals her conviction, arguing that: (1) the State committed reversible error by improperly attempting to define reasonable doubt for the jury in rebuttal closing argument; (2) the trial court erred in denying defendant's posttrial motion to appoint a special prosecutor; (3) her trial counsel was ineffective; (4) she was not proven guilty beyond a reasonable doubt; and (5) she was denied a fair trial because of the cumulative effect of various trial errors. We affirm the trial court's judgment.

¶ 2 FACTS

¶ 3 In April of 2008, defendant was charged with theft in excess of $10,000 from MKM Oil Company, Inc. (MKM). The charge was in relation to an alleged theft of money, which took place from about August 2007 through April 2008, from an automated teller machine (ATM) at a gas station and convenience store in Mazon, Illinois, where defendant worked.

¶ 4 Defendant's case proceeded to a jury trial in February 2010. Prior to trial, defense counsel made a motion in limine to prevent the State's expert witness from testifying that the ATM in question was working properly during the relevant period. Defense counsel alleged that such an opinion was improper because the expert had not personally inspected the ATM and because there had been numerous repairs made to the ATM both during and after the relevant period. After a hearing, the trial court denied the motion, finding that defense counsel's arguments went to the weight of the evidence and not to admissibility.

¶ 5 During the jury selection process, at various times, the trial judge informed the potential jurors that the State had the burden to prove defendant guilty beyond a reasonable doubt, that defendant was presumed innocent throughout the trial, and that defendant did not have to testify or present any evidence.

¶ 6 After the jury was selected, the evidence phase of the jury trial began. The State presented numerous witnesses. Robert Seabright testified for the State that he was an area supervisor for MKM, which operated several gas stations and convenience stores (collectively referred to as stores). Seabright had been an area supervisor for several years and, as such, was responsible for directing the activities of the individual store managers, supervising store conditions, and hiring management personnel as required. Seabright supervised eight stores, one of which, during 2007 and 2008, was the store in Mazon, Illinois. In performing his job duties, Seabright called and visited the stores several times per week and picked up store packets, which contained the daily store reports and supporting documents, such as supplier invoices, maintenance receipts, invoices for repair services, bank deposit receipts, credit-card tickets, ATM receipts, and ATM reports.

¶ 7 For each store, there was one store manager and either one or two assistant managers. The store manager's responsibilities included ordering and receiving merchandise, properly accounting for all of the sales cash receipts, depositing the sales cash receipts in the bank, and refilling and restocking the ATM. Each day, the store started out with $1,000 in cash for making change. Anything above that amount was supposed to be deposited in the bank. Store managers were required to prepare a daily store report (daily report), which reflected for the previous day the cash coming into the store and where that cash went, either to the bank, or to the ATM, or to other places. The report was configured as a balance sheet with funds coming into the store listed on one side of the sheet and funds going out of the store listed on the other side of the sheet. According to Seabright, the two sides were supposed to be equal, although that rarely occurred. Typically, the amounts listed on the two sides were within a few dollars of each other. After the daily report was prepared, it was placed into a packet for the day. Seabright picked up the packets from the stores two or three times per week, took the packets to the MKM office in Gardner, Illinois, and turned the packets over to the accounting personnel. Seabright did not inspect the contents of the packets and stated that doing so was not one of his responsibilities as area manager.

¶ 8 MKM took over the Mazon store in April or May 2007. Defendant was initially hired to be the manager of the store in Morris, Illinois, but was transferred to the Mazon store in about July 2007. As part of the interview process, defendant submitted to a background check, and no problems were found. Defendant also successfully completed manager training at the Coal City store.

¶ 9 When MKM took over the Mazon store, a new ATM was installed. To access the ATM, a password, a combination, and two keys were required. Between July 2007 and April 2008, only defendant and Seabright had access to the ATM in the Mazon store, and defendant was the only one who was responsible for replenishing the cash in the ATM. According to Seabright, when the password was entered, the ATM would print out a small receipt showing the amount of cash that had been dispensed so that the store manager would know how much money to put back into the ATM. The receipt was supposed to be attached to the daily report. The Mazon store kept $1,500 in the ATM. In the bottom of the ATM was a cassette box that held the money. The box had a spring-tension mechanism that pushed the bills forward to dispense them. According to Seabright, the store manager would use the previous day's cash receipts to replenish the ATM. The amount put into the ATM to replenish it would be entered on the daily report in the space provided. Typically in the Mazon store, the ATM was replenished about three times per week.

¶ 10 Seabright stated that between August 1, 2007, and March 31, 2008, he did not access the ATM at the Mazon store for any reason and did not replenish the cash in that machine. Seabright acknowledged that there was no place on the daily report for the manager to write in the amount that had been dispensed from the ATM but stated that there was a place for the manager to write in the amount that had been put in the ATM to replenish it.

¶ 11 On Friday, April 11, 2008, Seabright went to the Mazon store and accessed the ATM. Prior to doing so, he had received a request from Mary Ann Laufer, the auditing person in MKM's Gardner office, to obtain the ATM journal report. According to Seabright, the ATM journal, which was printed directly from the ATM, listed every transaction from that particular ATM since the last time the journal was printed. When Seabright arrived at the store that day, defendant was working. Seabright did not explain to defendant what he was doing with the ATM, and defendant did not ask. Seabright printed the ATM journal, rolled it up, and turned it over to Laufer.

¶ 12 The Mazon store had a security system with eight cameras located in various spots throughout the store. Activity in the area of a camera would cause the camera to start recording. After 30 days, the recording system would start recording over the old images, unless the data was saved to a compact disc. In addition to video surveillance, there was also a live feed over the Internet from the Mazon store to the Gardner office so that someone working in the Gardner office could see in real time what was going on in the Mazon store. Defendant was aware of the cameras. During the trial, a video of about 20 minutes from the surveillance cameras was played for the jury. One segment of the video showed defendant accessing the ATM; another showed defendant counting money in the back office. According to Seabright, there was nothing out of the ordinary in the video regarding defendant's actions. Seabright stated that during the relevant time period, defendant was authorized to remove money from the Mazon store to take to the bank for the purpose of making a deposit. Defendant was not authorized to remove money from the Mazon store for any reason other than a business purpose. Seabright testified further that to the best of his knowledge, there had not been any discrepancies with the balance sheet between the daily reports and the ATM receipts.

¶ 13 On April 12, 2008, the day after he retrieved the ATM journal from the Mazon store, Seabright drove to the Mazon store and found one of the part-time employees working. The employee told Seabright that defendant had resigned and that her resignation was in the back office.

¶ 14 The ATM at the Mazon store was purchased new from Welch Systems, and Welch had agreed to maintain the machine for a period of time. If there was a problem with the ATM, defendant was supposed to contact Dan Joyce, who was the maintenance supervisor for any work that was to be done in the store. On cross-examination, Seabright was shown maintenance records for the ATM. The records indicated that the ATM had been serviced at various times while defendant was employed at the store and after defendant resigned for different problems, including problems with the cash dispenser. Seabright initially testified that he was not aware of those problems but, when questioned further, stated that he repeatedly told defendant to call Dan Joyce.

¶ 15 According to Seabright, it was defendant's responsibility as manager to print out and turn in the ATM journal on a monthly basis with the daily reports that were being turned in for that period. Seabright stated that defendant was very good about preparing the reports and was a very good employee as far as being on time, not missing work, and not causing any problems. At some point, however, there was a problem with defendant switching hours with the assistant manager, Kim. Defendant and Seabright had words about that issue, and that issue was referenced in defendant's resignation letter. Defendant eventually terminated Kim after giving her several write-ups for problems with her performance.

¶ 16 Mary Ann Laufer testified for the State that she worked at MKM's Gardner office doing auditing work. As part of her job responsibilities, Laufer compared the daily store reports with the supporting documents to make sure that all of the numbers were supported and correct, that there were no discrepancies, and that the two sides of the daily report balanced. Corrections to the daily report were made by the Gardner office in red pen. In 2007, Laufer was responsible for auditing 15 to 20 stores. For each store, every daily report was audited.

¶ 17 In about January 2007, Laufer's job responsibilities were expanded and she became responsible for helping set up a computer program that MKM was implementing at the various stores. The program allowed the stores to input their numbers electronically so that they could be transmitted directly to Laufer. Another person, Julie Jacobsgaard, was hired in September 2007 to take over Laufer's auditing responsibilities.

¶ 18 In April 2008, Laufer reviewed the documentation for the Mazon store while working on the computer program for that store. Laufer noticed that there were no ATM reports with the documentation. The ATM reports would have showed how much cash had been dispensed from the machine. Laufer asked Jacobsgaard about the discrepancy, and Jacobsgaard told her that they had not gotten any ATM reports from the Mazon store in quite a while. Laufer looked through the daily reports and found that they had not received any ATM reports from the Mazon store since July 2007. Laufer ran some reports on the Internet through Welch, which showed how much had been dispensed each day, and determined by comparing those reports with the daily reports from the Mazon store that there was a considerable discrepancy. Laufer asked Seabright to obtain the ATM journal from the Mazon store. Laufer also met with Cathy Setterlund of Welch to verify that her findings were correct.

¶ 19 At the time of trial, Jacobsgaard no longer worked for MKM. Laufer testified that she did not know whether the packet of daily reports from the Mazon store contained the ATM reports when they were received at the Gardner office because Jacobsgaard was doing the auditing work at that time and would have received those packets. Laufer stated that she could tell from comparing the total of the deposits to the total that was dispensed that over $50,000 was missing. Laufer stated that she spot-checked Jacobsgaard's work during the relevant period but did not notice that the ATM reports were missing.

¶ 20 Catherine Setterlund testified for the State that she was an installations project manager for Welch Systems, which sold and serviced ATMs and other money-handling equipment. Setterlund's job responsibilities included training individuals on the use and balancing of ATMs. Setterlund had been balancing ATMs for approximately 10 years on a daily basis and had balanced ATM records thousands of times. According to Setterlund, it was important to balance an ATM to make sure that it was functioning properly and to make sure that no one was stealing from the ATM. Setterlund described for the jury how an ATM worked and the process of balancing an ATM. Setterlund stated that to balance an ATM, she would compare two documents: the ATM journal, which was created by and printed from the actual ATM, and the processor journal, which was created by the processor at the processor location and could be accessed through a Web site. According to Setterlund, the two records should be identical--what the ATM journal indicated was dispensed should be the exact same amount that the processor journal indicated was dispensed. If the records matched up, the ATM was functioning properly.

¶ 21 Welch had contracted with MKM to process and service MKM's ATMs. In April 2008, Setterlund was asked to balance the ATM in the Mazon store. Setterlund reviewed the ATM journal and the processor journal and determined that they balanced and that the ATM was functioning properly. Setterlund stated that it was her opinion that the ATM in the Mazon store was working properly for the period in question because there were no discrepancies between the journal and processor records. Setterlund acknowledged that various repairs were made to the ATM during that period but stated that the repairs did not reflect any issues in dispensing or doing transactions on the journal.

ΒΆ 22 In reviewing the records, Setterlund determined that there was a shortage between the amount of money that was allegedly put into the ATM over the relevant time period and the amount that was actually put into the machine. The amount of the shortage was $64,460, calculated as follows: $1,120 in August 2007; $5,740 in September 2007; $9,320 in October 2007; $9,940 in November 2007; $7,360 in December ...


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