                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                           People v. Kotero, 2012 IL App (1st) 100951




Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                    KEITH KOTERO, Defendant-Appellant.



District & No.             First District, Second Division
                           Docket No. 1-10-0951


Filed                      September 28, 2012


Held                       Defendant parking enforcement officer’s convictions on five counts of
(Note: This syllabus       theft arising from accepting money for removing “Denver boots” were
constitutes no part of     affirmed, but his conviction on one count of official misconduct based on
the opinion of the court   the same acts was vacated pursuant to the one-act, one-crime doctrine,
but has been prepared      since official misconduct was the less serious offense.
by the Reporter of
Decisions for the
convenience of the
reader.)


Decision Under             Appeal from the Circuit Court of Cook County, Nos. 07-CR-4407, 07-
Review                     CR-4410 to 07-CR-4414; the Hon. Thomas M. Tucker, Judge, presiding.



Judgment                   Affirmed in part and vacated in part.
Counsel on                 Michael J. Pelletier, Alan D. Goldberg, and Kieran M. Wiberg, all of
Appeal                     State Appellate Defender’s Office, of Chicago, for appellant.

                           Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
                           Anthony M. O’Brien, and Donald T. Lyman, Assistant State’s Attorneys,
                           of counsel), for the People.


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


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     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 nonsuit 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


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       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.” Skrine 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.” Skrine testified on cross-
       examination that defendant “assured [her] that [her] car was no longer on the boot list.”
¶ 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 “looked
       official.” Mejia stated that when he got home from the police station about 20 minutes later,
       the boot had been removed from his car.
¶ 13       Knight testified that when she discovered that her car had been booted, she went to the
       Village and met with defendant. She stated that she had about $900 in unpaid parking tickets,
       but defendant agreed to accept $600 in cash to settle the debt. She testified that he gave her
       a receipt. By the time Knight returned home, the boot had been removed from her car.
¶ 14       Draine testified that he went to the Village after his car had been booted. Draine had
       about $2,200 in unpaid parking tickets. Defendant “set up a payment plan” for Draine and
       allowed him to pay his tickets over time. Draine paid defendant $800 in cash that day and the
       boot was removed. He made additional cash payments to defendant every two weeks.
       Defendant gave Draine a handwritten receipt on Village letterhead after each payment. In
       total, Draine paid just over $2,000 to defendant.
¶ 15       Bouie testified that he went to see defendant after his car had been booted. Defendant
       told Bouie that he owed over $500 in unpaid tickets. Bouie offered to pay the fines by credit


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       card, but defendant told him that he could not accept credit card payments. The next day,
       Bouie discovered that his car had been towed. Bouie returned to defendant’s office a few
       days later with cash and paid slightly less than he owed in fines. Defendant helped Bouie get
       his car back from the towing company; at that time, the boot had been removed from Bouie’s
       car. Almost two weeks later, a police detective called Bouie and told him that the Village’s
       records did not reflect that his parking fines had been paid.
¶ 16       After closing arguments, the court found defendant guilty on five counts of theft and one
       count of official misconduct.

¶ 17                                          ANALYSIS
¶ 18       On appeal, defendant first argues that his theft convictions arose out of the same act as
       the official misconduct conviction in violation of the one-act, one-crime doctrine. He asserts
       that such a violation usually results in vacatur of the conviction on the less serious charge.
       However, he contends that where the offenses carry the same penalty, as in this case, the
       conviction for the more general offense should be vacated. Therefore, his theft convictions
       should be vacated. Although the State agrees with defendant and concedes this issue, it is
       nevertheless an issue that requires an analysis that neither of the parties provides.
¶ 19       The one-act, one-crime doctrine prohibits multiple convictions based on “precisely the
       same physical act.” People v. Nunez, 236 Ill. 2d 488, 494 (2010). However, if a defendant
       commits multiple acts, then multiple convictions may stand, provided that none of the
       offenses are lesser-included offenses. Nunez, 236 Ill. 2d at 494. Whether a defendant has
       been improperly convicted of multiple offenses arising out of the same act and whether a
       charge encompasses another as a lesser-included offense are questions of law that we review
       de novo. Nunez, 236 Ill. 2d at 493.
¶ 20       The first step in this analysis requires us to determine whether the defendant’s conduct
       was a single physical act or multiple acts. People v. Harvey, 211 Ill. 2d 368, 389-90 (2004).
       In this context, an “act” is “ ‘any overt or outward manifestation which will support a
       different offense.’ ” (Emphasis omitted.) Nunez, 236 Ill. 2d at 494 (quoting People v. King,
       66 Ill. 2d 551, 566 (1977)).
¶ 21       This court has previously examined whether theft and official misconduct arise out of the
       same act for purposes of the one-act, one crime doctrine. In People v. Moshier, 312 Ill. App.
       3d 879 (2000), the defendant, a township supervisor, was charged with theft and official
       misconduct after stealing over $100,000 from his municipal employer. Moshier, 312 Ill. App.
       3d at 881. After being convicted for both offenses, the defendant sought to vacate his
       conviction for official misconduct, arguing that it was “based on the same conduct
       underlying his theft conviction.” Moshier, 312 Ill. App. 3d at 880. We agreed, noting that
       “both counts of the indictment [were] based on the same act of converting ‘certain checks
       and money *** having a total value in excess of $100,000.’ ” Moshier, 312 Ill. App. 3d at
       882 (quoting the language of the indictment, which was exactly the same for both charges).
       Significantly, we held that although “defendant’s knowledge of wrongdoing as a public
       official” is an additional element of the official misconduct charge not contained in the theft
       charge, it is not an “additional act, [as] it constitutes neither a physical act [citation] nor an

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       overt or outward manifestation capable of supporting a different offense.” Moshier, 312 Ill.
       App. 3d at 882; see also Harvey, 211 Ill. 2d at 390 (an additional element of an offense is not
       necessarily a separate “act”). Therefore, convictions for both offenses could not stand
       because they both were based solely on the same act of stealing $100,000 from the township.
       Accordingly, pursuant to the defendant’s request for relief, the court vacated the conviction
       for official misconduct. Moshier, 312 Ill. App. 3d at 882.
¶ 22        As in Moshier, we look to the charging instruments to determine whether the theft
       offenses and the official misconduct offense were based on the same “act” in this case. Theft
       by deception under section 16-1 of the Criminal Code of 1961 (Code) occurs when a person
       “ ‘knowingly *** [o]btains by deception control over property of the owner’ and ‘[i]ntends
       to deprive the owner permanently of the use or benefit of the property.’ ” People v. Kotlarz,
       193 Ill. 2d 272, 299 (2000) (quoting 720 ILCS 5/16-1(a)(2)(A) (West 2006)). The State
       charged defendant with five counts of that offense, alleging that on five different occasions,1
       defendant:
                “Knowingly obtained by deception control over property of the Village of Oak Park,
            to wit: United States currency, and [defendant] intended to deprive the Village of Oak
            Park permanently of the use or benefit of the property, and the property had a value
            exceeding $300.00 but not exceeding $10,000.00 ***.”
¶ 23        Official misconduct under section 33-3(b) of the Code occurs when a public employee,
       in the public employee’s official capacity, knowingly performs an act he knows is forbidden
       by law. People v. Williams, 239 Ill. 2d 119, 127 (2010) (citing 720 ILCS 5/33-3(b) (West
       2006)). When charging official misconduct, section 33-3(b) “requires that the charging
       instrument specify the law allegedly violated by the officer.” (Internal quotation marks
       omitted.) Williams, 239 Ill. 2d at 127. At a minimum, an indictment charging official
       misconduct must “ ‘allege facts that would show defendant violated an identifiable statute,
       rule, regulation, or tenet of a professional code.’ ” Williams, 239 Ill. 2d at 128 (quoting
       People v. Grever, 222 Ill. 2d 321, 337 (2006)).
¶ 24        The State charged defendant with one count of official misconduct under section 33-3(b),
       with the indictment stating:
            “[B]etween July 21, 2006 and September 28, 2006, *** [defendant] committed the
            offense of official misconduct in that he, a Village of Oak Park parking enforcement
            officer, in his official capacity, knowingly performed an act which he knows is forbidden
            by law to perform, to wit: theft of money due to the Village of Oak Park from unpaid
            parking tickets, in violation of [section 33-3(b) (720 ILCS 5/33-3(b) (West 2006))] ***.”
¶ 25        Although the charges at issue here are the same as those in Moshier, this case differs in
       that the “act” giving rise to all of the charges against defendant involves five thefts that are


               1
                 The indictment in case number 07 CR 4410 alleged that the theft occurred on August 18,
       2006. In case number 07 CR 4411, the alleged theft occurred on August 21, 2006. In case number
       07 CR 4412, the alleged theft occurred on August 25, 2006. In case number 07 CR 4413, the alleged
       theft took place between August 4 and September 15, 2006. In case number 07 CR 4414, the alleged
       theft occurred on September 28, 2006.

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       themselves indisputably different “acts” of theft that took place on different dates and
       involved different victims. That is, a single charge of official misconduct is allegedly based
       on the same “act” as the five theft charges solely by virtue of the dates asserted in the
       indictments. Moreover, unlike Moshier, the wording of the indictments is not identical, nor
       did the official misconduct charge specify the law allegedly violated by defendant. However,
       none of these differences persuade us to depart from the holding in Moshier.
¶ 26       The official misconduct and aggregated theft charges were based on the same physical
       act, which was stealing money over a two-month period that belonged to the Village. The
       State charged defendant with official misconduct based on “theft of money due to the Village
       of Oak Park from unpaid parking tickets” and the theft charges were based on several
       instances of defendant “obtain[ing] by deception” money belonging to the Village.
       Additionally, the dates of the official misconduct charge encompass the dates of the theft
       charges. The dates an alleged offense occurred are an essential part of a charging instrument
       (725 ILCS 5/111-3(a)(4) (West 2006)) and here, they define the act for which defendant was
       convicted. See People v. Patrick, 38 Ill. 2d 255, 259 (1967); People v. Baugh, 145 Ill. App.
       3d 133, 138 (1986) (explaining that a single offense may validly be described in an
       indictment as a series of successive events pursuant to a single criminal intent and scheme).
       Accordingly, as in Moshier, we conclude that the official misconduct charge and the theft
       offenses were based on the same act in violation of the one-act, one-crime doctrine. Moshier,
       312 Ill. App. 3d at 882.
¶ 27       To remedy such a violation, sentence should be imposed on the more serious offense and
       the conviction for the less serious offense should be vacated. People v. Artis, 232 Ill. 2d 156,
       170 (2009). In determining which offense is more serious, we “compare[ ] the relative
       punishments prescribed by the legislature for each offense” because the General Assembly
       likely assigned the greater punishment to the offense it deemed more serious. Artis, 232 Ill.
       2d at 170. At the time the offense was committed, official misconduct was classified as a
       Class 3 felony. 720 ILCS 5/33-3 (West 2006). Theft of government property valued at more
       than $300 and less than $10,000 was classified as a Class 2 felony. 720 ILCS 5/16-1(b)(4.1)
       (West 2006). Therefore, defendant’s conviction on the official misconduct charge must be
       vacated. See Moshier, 312 Ill. App. 3d at 882.
¶ 28       Defendant next argues that his theft convictions were based on documents erroneously
       admitted into evidence and, therefore, he is entitled to a new trial. He argues that no
       witnesses provided the proper foundation for the computer-generated reports showing that
       he nonsuited the witnesses’ tickets without having turned over the money he collected from
       them. The State concedes the error, but argues that the admission of the evidence was
       harmless.
¶ 29       An error is harmless where it appears beyond a reasonable doubt that it did not contribute
       to the defendant’s conviction. In re Rolandis G., 232 Ill. 2d 13, 43 (2008). We analyze
       harmless error in one of three ways: (1) we may focus on the error itself to determine whether
       it might have contributed to the conviction; (2) we may examine the other properly admitted
       evidence to determine whether it overwhelmingly supports the conviction; or (3) we may
       determine whether the improperly admitted evidence is merely cumulative or duplicates
       properly admitted evidence. People v. Becker, 239 Ill. 2d 215, 240 (2010) (citing Rolandis

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       G., 232 Ill. 2d at 43).
¶ 30       The State contends that the error in admitting the reports is harmless in light of the
       overwhelming evidence supporting defendant’s conviction. Defendant contends that the error
       cannot be harmless because the records constituted the only evidence presented by the State
       on the element of defendant’s intent to permanently deprive the Village of the funds he
       allegedly took from the witnesses. Specifically, defendant contends that the records were
       used to demonstrate that he “nonsuited parking tickets that had been issued to the witnesses
       in this case” and that he “had not given the money that he received for the parking
       violations” to the Village.
¶ 31       As stated above, to convict a defendant of theft by deception, the State must prove that
       the defendant “obtain[ed] by deception control over property of the owner” and “[i]ntend[ed]
       to deprive the owner permanently of the use or benefit of the property.” 720 ILCS 6/16-
       1(a)(2)(A) (West 2006); Kotlarz, 193 Ill. 2d at 299. Evidence of intent to permanently
       deprive the owner of property may be inferred from the facts and circumstances surrounding
       the theft, including the act of the theft itself. People v. Adams, 161 Ill. 2d 333, 343-44 (1994);
       People v. Veasey, 251 Ill. App. 3d 589, 591 (1993); see also People v. Perry, 224 Ill. 2d 312,
       334-35 (2007). Intent may also be inferred from the lack of evidence of intent to return the
       property or to leave it in a place where the owner could recover it. Adams, 161 Ill. 2d at 343-
       44. In particular, intent may be inferred from fraudulent or deceptive acts that facilitated the
       theft. Veasey, 251 Ill. App. 3d at 592.
¶ 32       Here, admitting the computer documents was harmless error in light of the overwhelming
       evidence of defendant’s intent to permanently deprive the Village of the money he took from
       the witnesses. All of the witnesses testified that they gave defendant what they believed to
       be a partial payment of the fines they owed the Village in order for the boots to be removed
       from their cars. Defendant told all of them that they could only pay him in cash, which is
       untraceable, when in fact the Village also accepted direct payments by check and credit card.
       Nevertheless, as Moran testified, defendant lacked the authority to accept any payments of
       fines, regardless of payment method. Nor did defendant have the authority to waive the
       Village’s requirement that full payment of fines must be made before a boot could be
       removed. Furthermore, defendant provided the witnesses with falsified receipts for their
       payments, which suggests that he never intended to turn the money over to the Village. See
       Adams, 161 Ill. 2d at 343-44. Defendant’s use of fraud and deception in obtaining the money
       from the witnesses provides overwhelming circumstantial evidence that he intended to
       permanently deprive the Village of the money. See Veasey, 251 Ill. App. 3d at 592. Thus, the
       erroneous admission of the computer records was harmless beyond a reasonable doubt. See
       Rolandis G., 232 Ill. 2d at 43.
¶ 33       Defendant also argues that because the State did not present any computer records
       showing that Bouie’s tickets were nonsuited and his fines were reversed, as it did for the
       other witnesses, the State failed to prove him guilty beyond a reasonable doubt on the theft
       count involving Bouie. Defendant argues that absent those computer records, there was no
       proof that defendant intended to permanently deprive the Village of the money. However,
       as we have just discussed, defendant’s intent may be inferred from the deceptive nature of
       the theft itself and the computer documents were not necessary to prove that element. See

                                                  -8-
       Veasey, 251 Ill. App. 3d at 591. Bouie’s testimony that he made partial payments to
       defendant in cash in order to have his vehicle released, viewed in the light most favorable to
       the State, would permit a rational trier of fact to have found the essential elements of the
       offense involving Bouie proven beyond a reasonable doubt. People v. Clarke, 391 Ill. App.
       3d 596, 610 (2009). Accordingly, the conviction is affirmed.

¶ 34                                     CONCLUSION
¶ 35       For the foregoing reasons, we vacate defendant’s conviction for official misconduct as
       a violation of the one-act, one-crime doctrine. We affirm defendant’s convictions on five
       counts of theft.

¶ 36      Affirmed in part and vacated in part.




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