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Docket No. 88078-Agenda 13-May 2000.

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. JOSEPH S. KOTLARZ, Appellant.

Opinion filed October 13, 2000.

CHIEF JUSTICE HARRISON delivered the opinion of thecourt:

Defendant, Joseph S. Kotlarz, appeals his conviction for theftby deception of an amount exceeding $100,000 (720 ILCS 5/16-1(West 1992)), for which he was sentenced to serve four years'probation, 180 days in the Du Page County jail, 400 hours ofcommunity service, and to pay restitution of $190,000.Defendant's main contention is that the appellate court erred inaffirming his conviction (No. 2-97-l194 (unpublished order underSupreme Court Rule 23)), because the State failed to prove all theessential elements of the crime beyond a reasonable doubt. Weallowed defendant's petition for leave to appeal. 177 Ill. 2d R. 315.

At the joint Du Page County bench trial involving defendantand codefendant, Robert Hickman (Hickman), Malcolm Ericksontestified that, from 1982 to 1992, he had served as chief counselfor the Illinois Toll Highway Authority (Tollway). The Tollwayowned a piece of property on the north side of Interstate 88 andwest of Meyers Road in Du Page County which had originallybeen purchased for an oasis. The property became excess becausethe Tollway had decided not to build an oasis on that site and theTollway chose to sell the property.

Erickson further testified that, in 1989 and 1990, he startednegotiating with Roger Berres and Gregory Constantino of WasteManagement, Inc. (Waste Management), for the sale of the MeyersRoad property. He stated that, during those negotiations, neitherside used the services of a broker. The negotiations provedunsuccessful and the Tollway retained ownership of the property.Erickson testified that, although he was contacted by Berres inApril 1991 about reopening negotiations, he directed Berres toanother attorney for the Tollway and was not involved in thosenegotiations due to an extended illness. Erickson stated that hewould not have expected a broker to participate in the sale of theproperty because a broker is normally used to find potential buyersand, here, the buyer was already identified. Erickson testified thatin July and August of 1991, Hickman was the executive directorof the Tollway. Erickson did not know defendant.

Michael Blonstein testified that he had been employed byEagle Real Estate Services (Eagle) for 11 years, up untilapproximately one year before the trial in this matter. Blonsteintestified in exchange for immunity from prosecution and statedthat Eagle had, pursuant to an agreement with the State, returnedits portion of the commission from the sale of the property to theTollway rather than risk indictment. Blonstein stated that Eagleprimarily represented shopping center developers or retailers andthat, in 1990, defendant assisted Eagle in a Tinley Park real estatetransaction. Defendant received over $25,000 for his assistance inthe transaction.

Blonstein testified that he and defendant were friends and that,in the spring or summer of 1991, defendant asked Blonstein topick him up at Midway Airport, explaining that he had a "dream"deal for Blonstein. When they met, defendant told Blonstein thathe was going to put Eagle in a deal in order to repay Blonstein forthe way he had handled the Tinley Park transaction relative todefendant. Blonstein stated that defendant explained the dealinvolved Waste Management purchasing property from theTollway and that Eagle would receive $50,000. Blonstein askedwhat Eagle was expected to do in the deal and defendant repliedthat Eagle would have nothing to do and that this was his way ofrepaying Eagle. Blonstein testified that he asked defendantwhether the deal was legitimate and defendant assured him that itwas.

Blonstein further testified that he never learned many detailsconcerning the sale of the property. When he would questiondefendant about the deal, defendant would put him off, telling himthat when the problems were worked out, the deal would close.Blonstein learned that the total commission on the deal was to be$240,000, with $50,000 to Eagle and the balance to defendant, andthat Eagle was listed in the contract as the broker of record. Whenthe deal was scheduled to close, Eagle was directed to send aninvoice indicating that it had been Waste Management's broker.Until receiving a letter dated July 23, 1991, it was not clear toBlonstein that Eagle was representing Waste Management ratherthan the Tollway. The letter, on defendant's letterhead stationaryand addressed to Hickman, was given to Blonstein by defendantto provide him with some of the particulars of the deal. The letterreflected the purchase price of the property as $3.8 million and thebrokerage fee to Eagle of $240,000. The State admitted intoevidence copies of Eagle's check to defendant for $190,000 andthe 1099 tax form reflecting payment of the commission.

Blonstein stated that he never discussed the sale of theproperty with anyone from either the Tollway or WasteManagement. Indeed, before attending a dinner with defendant andHickman, defendant instructed him not to mention the deal.Blonstein testified that he had never before been brought into atransaction where he had then paid a large portion of thecommission back to the purchaser's lawyer.

George Erwood testified that he helped to form Eagle and hasbeen its owner since 1986. Erwood stated that he first metdefendant on July 1, 1991, when he handed defendant a check forhis services in the Tinley Park transaction. Blonstein informedErwood about the deal involving the Tollway and WasteManagement, and he believed Eagle was to provide comparablelistings. Erwood stated that no oral or written agreement existedbetween Eagle and either the Tollway or Waste Management.Erwood had no contact with either the Tollway or WasteManagement regarding the deal, nor did he provide services toeither party.

Erwood further testified that he understood defendant wasrepresenting Waste Management. At defendant's request, Erwooddrafted the broker's invoice and sent it to the title company. A dayor two later, Erwood picked up the commission check for$240,000 from the title company and deposited it. Erwood thendrafted the $190,000 check to defendant, dated October 20, 1992.Erwood testified that he had never been involved in a deal inwhich a portion of the brokerage fee was given to the purchaser'sattorney. While Erwood admitted that he had once described Eagleas a "conduit" with respect to the deal, he regretted that choice ofwords but agreed that the deal was "processed" through Eagle.Erwood stated that he never believed that Eagle did anythingillegal in connection with this matter, and paid back the $50,000because he was being threatened with prosecution and felt it wasthe prudent course of action. Eagle made the check payable to theTollway at the direction of the State's Attorney's office.

Peter Huizenga testified that he has been a member of WasteManagement's board of directors since it was formed in 1968.Huizenga had known defendant for 12 to 15 years, and Hickmanfor 8 to 10 years. Huizenga stated that Waste Management hadbeen seeking the Meyers Road property for two or three yearsbefore it was actually purchased. He was aware of the personalfriendship between defendant and Hickman, and introduceddefendant to Waste Management because defendant indicated thathe might be able to assist the company in acquiring the property.Defendant told Huizenga that he had a personal relationship withHickman, which might be a "good fresh approach." Huizengatestified that he was not involved in the real estate transaction andwas not aware that Eagle was involved. While Huizenga did notknow how defendant was going to be paid by Waste Management,he assumed that it was being handled by Roger Berres. ToHuizenga's knowledge, no one at Waste Management approved ofan arrangement by defendant to receive $190,000 of sale proceedsprovided to a broker.

Gregory Constantino testified that he is an attorney for WasteManagement, and that in 1991 and 1992, he worked as seniorattorney in real estate transactions. As part of his duties,Constantino drafted, reviewed and formulated real estate contractsand offers. In 1988 and 1989, Waste Management was attemptingto obtain an easement or right of way over the Meyers Roadproperty owned by the Tollway in order to construct a frontageroad to link two of the company's buildings. Waste Managementdid not use a broker during these negotiations.

In June 1991, negotiations between the Tollway and WasteManagement renewed. Constantino met defendant when he wasasked to go with Berres and defendant for a drive by the property,after which they all joined Hickman for lunch. Constantino had nofurther involvement in the negotiations and testified that Berreshandled them. Constantino did, however, participate in draftingthe sales contract and reviewed a draft agreement prepared bydefendant. Defendant's draft contained an offer of $3.8 million forthe property and a provision for payment of $240,000 to Eagle asreal estate broker. Constantino protested the provision to Berres,stating that he was unaware that a broker had been involved, didnot know why Waste Management was paying a fee, and had notheard of Eagle. Constantino testified that Berres told him "this wasthe way the Tollway wanted the transaction." Constantino thenprepared a new version of the agreement and included a provisionin which the Tollway warranted that there were no other brokersand that the commission would not exceed $240,000.

Constantino further testified that he had no knowledge of anyreal estate broker working on behalf of Waste Management forthis property; he believed that Eagle was the Tollway's broker.Constantino informed Berres that because Eagle was not theirbroker, some of the contract language should be changed.Constantino objected to three sentences which were ultimatelydeleted, one of which stated: "Purchaser agrees to be solelyresponsible for the commission due Eagle Real Estate."Constantino explained: "We had agreed out of proceeds to pay it,out of the total that we were paying for the property, the$4,040,000. But we were not going to be solely responsible forthis commission." For this same reason, Constantino stated, hebelieved it was the Tollway's responsibility to deposit thecommission statement into escrow. Constantino affirmed onredirect that Waste Management's out-of-pocket expenditure toobtain the property was $4,040,000 plus closing costs.

Ben Swislow testified that he had been employed in theTollway's real estate department since March 1991. He wasinformed about the potential sale of the Meyers Road property toWaste Management, and contacted Berres about the property, butwas not involved in the negotiations regarding the sale. Swislowstated that Hickman was the executive director of the Tollway atthis time, and he occasionally spoke with Hickman about the saleof the property and was told the deal was not closed. Hickman toldSwislow that the Tollway would receive $3.8 million for theproperty.

In the winter of 1991, Hickman directed Swislow to take thecontracts to Berres at Waste Management. While waiting in thereception area at Waste Management's offices, Swislow metdefendant. When Berres came down, the three men went to Berres'office and Swislow gave him the contracts. Swislow testified thathe found the broker's commission odd because, to his knowledge,there was no broker involved in the deal and the Tollway had nobroker's agreement with respect to the property. Swislow statedthat an appraisal of the property contained a variety of values, buthe did recall the amount $2,265,000. He believed that the price of$3.8 million was "a fabulous price."

Frank Howard testified under a grant of immunity. He hadbeen defendant's law partner from 1983 to 1987, doing the "handson" work while defendant brought in the business. The partiesstipulated that defendant's law office was across the hall fromFuture Realty, that defendant used Future Realty's fax machine,and that Hickman was never in defendant's office. Howardtestified that he became the Tollway's chief legal counsel onNovember 1, 1991. Although he stated that he obtained theposition by applying and interviewing for it, he acknowledged thatdefendant had said he would assist Howard in any way possibleand told Howard that he had made efforts on his behalf. Shortlyafter he started his job at the Tollway, Howard was told to contactRoger Berres at Waste Management because there was a dealpending for Waste Management to purchase excess property.Howard learned of defendant's involvement in this transactioneither shortly before or after beginning employment with theTollway. He ultimately assigned the drafting of this transaction tostaff attorney Paul Olszewski.

Howard testified that he was informed that the purchase priceof the property was $3.8 million, and he was involved innegotiating the other terms of the contract. Howard denied evertalking to Hickman about the purchase price. Howard testified thatPeople's Exhibit No. 6, a July 30, 1991, letter to Hickman, signedby defendant, outlined the terms of the deal as Howard understoodthem. As executive director, Hickman would have been the partyresponsible for negotiating the contract.

Howard further testified that, before beginning work on theproject, he did not see anything in writing regarding who broughta broker into the deal. Howard was told that the commission of$240,000 was to be paid by Waste Management, and made anotation on the contract to that effect. Howard stated that, pursuantto his interpretation of the contractual language, Eagle was WasteManagement's broker. According to Howard, the board ofdirectors would be required to expressly approve a brokeragecontract for the Tollway.

Howard testified that Paul Olszewski attempted to insert threesentences into the contract which would have made it very clearthat the broker was Waste Management's, that Waste Managementwas to pay the commission, and that the commission was not partof the sale proceeds due the seller. When they got the contractback from Waste Management, that language had been deleted andHoward told Olszewski that it was something that he and Berreshad argued over, and that this was the way the contract was to bepresented to the board. Howard testified that he did not know thatdefendant was to receive $190,000 of the commission and, had heknown, he would have investigated. No one ever told Howard thatthere was a $4,040,000 offer for the property before the $240,000brokerage fee was written into the agreement.

Christine Benn testified that she was employed by theTollway as an executive secretary from 1987 to 1994. She workedfor Hickman in 1991 as his administrative assistant. Bennidentified the signature on People's Exhibit No. 2 as Hickman's,and the parties stipulated to this fact. People's Exhibit No. 2 wasa letter dated July 17, 1991, from Hickman to Berres of WasteManagement which stated, in part:

"This letter is in reference to your proposal of July 10,1991. My Board and I would react negatively to any offerbelow four million dollars and it would probably take alittle more than that to gain our approval.

Your next proposal should include a reference to thebrokerage fee. This is made payable to the Eagle RealEstate Services and will be at six percent of the purchaseprice."

Robert Douglas testified that he was a senior attorneyemployed by the Tollway in 1991. In 1992, he was appointedassistant chief counsel to Frank Howard. Douglas stated that hewas familiar with the procedures for the sale of excess property in1991. Douglas testified that he first became aware of the MeyersRoad transaction in August 1993, after a discussion with PaulOlszewski. Douglas thereafter brought the information to theattention of the Tollway chairman's secretary, and then met withthe chairman, John Garrow, and with the Illinois State Police.Douglas testified that he copied the contents of the file on theMeyers Road transaction and turned it over to the police. In April1994, Douglas learned that he had been stripped of his designationas a special assistant attorney general, a title which Tollwayattorneys held at that time. The form terminating his position wasinitialed by Howard and Hickman. Douglas testified that hereported to Howard, a department head, and that the departmentheads were given the freedom to operate as they saw fit. Douglaswas never told of any dissatisfaction with the quality of his work.

Paul Olszewski testified that he was an assistant attorneygeneral for the Tollway whose responsibilities included draftingcontracts for real estate sales. Olszewski stated that, in 1992,Howard assigned him to review the contract for the Meyers Roadproperty, People's Exhibit No. 12, and told him that his contact atWaste Management was Roger Berres. Olszewski testified that,before he reviewed the purchase price on the contract, he talked toBen Swislow, who voiced some concerns. Swislow advisedOlszewski that defendant was involved in the deal, that thepurchase price was to have been $4 million, and that there hadpreviously not been a broker involved in the deal.

Olszewski reviewed the price and brokerage provisions of thecontract and noted that the stated purchase price, $3.8 million, wasessentially $4 million less the commission. When Olszewskirelated this fact to Howard, Howard advised him that the purchaseprice was $3.8 million and that the commission was over andabove that. Pursuant to this conversation with Howard, Olszewskiredrafted the paragraph dealing with the brokerage fees to providethat the fees were independent of the sales price, that the purchaserwas to be solely responsible for the commission, and that thepurchaser would reimburse the seller for any costs involved in acommission claim. Olszewski testified that he understood that theTollway had no brokerage agreement with anyone and drafted thebrokerage provisions to make it clear that the Tollway "was not onthe hook." Olszewski stated that, when he asked Howard aboutSwislow's comments, Howard responded, " I don't know a thingabout it. It's Hickman's deal."

Olszewski further testified that he reviewed the second draftof the contract from Waste Management with Howard and notedthat the brokerage provisions had been changed back to theoriginal language. Howard appeared upset that the language hadbeen changed, but said that the Tollway would have to "live withit." In Olszewski's opinion, this version was less acceptable thanthe original because it contained a warranty from the Tollway thatthe commission would not exceed $240,000, which created theimpression that the Tollway approved of the commission.Olszewski testified that this version of the brokerage provisionwas ultimately accepted in the final contract. Olszewski stated thathe never talked with Hickman about the contract and that he didnot deal with defendant on this transaction.

Roger Berres testified that he had been employed by WasteManagement as an attorney and as director of real estate fromFebruary 1981 until October 1996. During 1991 and 1992, Berresreported to the corporate controller and was not a member of thelegal department; his duties involved real estate transactions.Berres stated that he was involved in negotiating the purchase ofthe Meyers Road property from the Tollway. In the late 1980s, hehad unsuccessfully negotiated with the Tollway in an attempt toobtain an easement on the property. Berres noted that, at that time,no broker was involved in the negotiations.

Berres testified that in May or June 1991, after Hickman hadbecome executive director of the Tollway, Berres renewednegotiations over the property. Berres stated that Peter Huizenga,from the board of directors of Waste Management, instructed himto contact defendant, explaining that defendant was Hickman'sfriend. Berres testified that Waste Management engaged defendantas an attorney to assist them in negotiations with the Tollway.Their arrangement was confirmed by a letter which instructeddefendant on how to document his time and expenses and how tosubmit bills to Waste Management. Defendant did not dispute theinstructions or otherwise indicate that he would not abide by them.Berres stated that Waste Management did not contemplate payingdefendant on a contingency basis.

In June 1991, Berres called defendant and met with him andConstantino, after which they met with Hickman over lunch todiscuss the Meyers Road property. Hickman referred Berres toSwislow for further discussion. In later negotiations, defendanttook the lead for Waste Management, informing Berres of theprogress he was making.

Berres testified that on July 8, 1991, he drafted a letter ofintent, People's Exhibit No. 1, in which the purchase price for theproperty was $4 million and which did not mention either thepresence of a broker or a broker's fee. Berres sent the letter todefendant for his review, as it was an accurate recitation of theterms that Waste Management wanted to submit to the Tollway.

Berres testified that he received People's Exhibit No. 2, theJuly 17, 1991, letter on Tollway stationary from Hickman, whichdirected Waste Management to include a broker's fee of 6% of thepurchase price, payable to Eagle, in their next proposal. Berresstated that, before receiving this letter, he had not heard of Eagleand was unaware that there was a broker involved in the deal.Berres discussed the matter with an attorney in the ethics andcorporate compliance department of Waste Management. Thatattorney told Berres the Tollway was entitled to direct that aportion of its proceeds be paid to a broker and Waste Managementcould accommodate that instruction. Berres testified that, in thediscussion, he speculated that perhaps Eagle had an institutionalrelationship with the Tollway, even though he had not had anycontact with Eagle during the negotiations.

Berres prepared a letter of intent, People's Exhibit No. 4, fordefendant's signature, showing the purchase price as $4,040,000and deleting the reference to broker's fees. Berres explained thatthis letter was in response to People's Exhibit No. 3, a proposedletter of intent that defendant had prepared which contemplatedWaste Management's payment of the brokerage fee out of the$4,040,000. Berres believed that Waste Management had notengaged a broker and the letter should merely reflect the totalpurchase price, allowing the Tollway to disburse the purchaseprice as it wished. Berres testified that he faxed People's ExhibitNo. 4 to defendant, having copied and recreated defendant'sletterhead so that the letter would not have to be retyped fordefendant's signature and to insure that it would be in the correctformat.

Berres identified People's Exhibit No. 6 as a letter dated July30, 1991, from defendant to Hickman proposing a purchase priceof $3.8 million and payment of a $240,000 commission. Berresstated that this was the final letter of intent between the parties.However, because Berres was not used to having outside law firmssubmitting the letters of intent for Waste Management, he sent asecond letter to Hickman that mirrored defendant's July 30 letter,to round out the file. Berres testified that he did not insist that theprovisions regarding the final purchase price and commission beincluded and did not recall whether he discussed those provisionswith defendant. Berres did not order or authorize that the invoicefrom Eagle be sent to Waste Management.

Berres further testified that the draft contract was sent toConstantino for review and redrafting. Berres explained that heobjected to the Tollway's draft contract, People's Exhibit No. 13,because it did not embody his understanding of the details of theagreement; it provided that the commission was not part of theproceeds due to the seller and was to be paid from the purchaser'sfunds independent of the closing. Additionally, Berres objected tothe language that Waste Management was solely responsible forthe commission due Eagle and that Waste Management wouldhold the Tollway harmless for the commission, because WasteManagement was not informed of the terms of the brokerageagreement. Berres testified that Waste Management did not havea contract or agreement with Eagle.

After speaking with Olszewski, Berres and Constantinosubmitted another draft of the contract deleting the objectionablelanguage. This version, People's Exhibit No. 19, included aprovision by which the Tollway warranted that the commissionwould not exceed $240,000. Berres testified that this provisionwas inserted based on his assumption that the Tollway knew theterms of the brokerage agreement. Waste Management insistedupon the inclusion of the "seller warrants" provision and it wasincluded in the final contract.

Berres testified that he never knew that defendant was goingto receive $190,000 of the brokerage fee, and he would not haveagreed to the transaction if he had known of that fact. Berres didnot authorize a contingency fee arrangement with defendant, nordid anyone at Waste Management tell him that defendant wasauthorized to take a portion of the commission. Berres testifiedthat he did not know that defendant brought Eagle into the dealand that Eagle was never the broker for Waste Management.

On cross-examination, Berres testified that he did not recallbeing asked a specific question about a contingency feearrangement during his testimony before the grand jury in 1994.Berres explained that, if he told the grand jury that there was acommission or percentage fee arrangement with defendant, heeither misunderstood the question or the transcript was in error,because he was asked similar questions several times during thattestimony and had repeatedly stated there was no arrangement likethat. Berres did not recall telling the police that defendant'srelationship with Waste Management was not covered by acontract and that defendant was "not a force in the deal." Berrescould not recall telling the police first that there was no broker inthe deal and then stating that he could not recall a broker. Berresalso did not recall telling the police that he discussed the paymentto Eagle with Olszewski or that he believed the payment to be theTollway's business.

During further cross-examination, Berres denied that he was"very disappointed" with the final purchase price, butacknowledged his grand jury testimony that Waste Managementwas hoping to acquire the property for far less and that they hadended up paying more than the $3 or $4 per square foot for whichcomparable properties had been selling. Berres explained that thepurchase price was dependent on the seller and the motivations ofthe buyer.

Berres also acknowledged that a bill submitted by defendantreferred to conversations with a real estate broker in July 1991, butBerres denied that defendant mentioned the broker to him.Although the bill was directed to Waste Management, Berresexplained that Constantino had handled the closing and that hewas unaware of the bill referencing a broker until it was drawn tohis attention by one of the prosecutors. However, by the timeBerres received this bill, the broker had already been included inthe deal and he would have had no reason to be suspicious ofdefendant's speaking with a broker.

Berres denied that he had attempted to renegotiate the price ofthe property with Ben Swislow of the Tollway in November 1991,or that he had told that to police. Berres admitted that whiledefendant submitted his final bill to Waste Management inNovember 1991, he had contacted defendant in January 1992,about a related piece of property. Berres denied that he tolddefendant to stop billing Waste Management because he knew thatdefendant was going to receive compensation through thebrokerage fee, stating that he was not in the habit of requestingbillings from outside counsel. Berres acknowledged thatConstantino filed a transfer tax declaration listing the purchaseprice of the property as $3.8 million, and that the warranty deedfiled with the county recorder showed that same purchase price.Berres testified that $3.8 million was a correct statement of thepurchase price in his mind.

Mark Tenney, a retired consulting engineer, testified that hefirst met defendant in 1991. The two discussed whether defendantcould assist Tenney's firm in expanding its activities in the Stateof Illinois, and defendant spoke of his ability to help the firm withthe Tollway. Tenney testified that defendant informed him that hehad a good relationship with Hickman and that he shared an officewith the Tollway's legal counsel, Frank Howard. Tenney's firmultimately entered into a consulting agreement whereby it paiddefendant a retainer of $5,000 per month for 24 months, with a$30,000 bonus. This consulting contract also included apercentage agreement, which was 6% of the net fees on two jobsthe firm performed for the Tollway, yielding defendant $80,000.

Before Tenney's firm retained defendant, its contracts withthe Tollway totaled approximately $200,000; after defendant wasretained, the contracts with the Tollway totaled $3.3 million.However, Tenney explained that the scope of his businessexpanded greatly the year he hired defendant. Tenney testified thatdefendant also introduced him to Peter Huizenga at WasteManagement, but this meeting did not result in any business forthe firm. Tenney also testified that it was a common industrypractice to use consultants to generate business and make contactswith potential employers.

John Garrow testified that he was the chairman and directorof the Tollway from 1991 to 1995. Garrow's was not a full-timeposition: he spent 15 to 20 hours per week on his job. Garrowtestified that the Tollway board approved 600 to 700 contracts ofall types during the course of a year. Garrow did not read eachword in each contract, but relied on the recommendations of thedepartment heads who presented the contract. Garrow identifiedPeople's Exhibit No. 26 as the April 30, 1992, resolutionapproving the sale of the Meyers Road property to WasteManagement. Garrow stated that it was one of 69 resolutionspassed at that board meeting.

Garrow testified that, in August 1991, he informed Hickmanthat he had learned that defendant was approaching Tollwaysuppliers saying he had a good relationship with the executivedirector of the Tollway, Hickman, and he could get them businesswith the Tollway. Hickman responded that this information wasnews to him, that defendant was acting without his knowledge orapproval, and that it would have to stop. Garrow had also learnedfrom Hickman that Howard would be appointed as chief counseland that he was defendant's former law partner. Shortly after hismeeting with Hickman, Garrow met defendant for the first time.Garrow testified that defendant told him "he had made somemistakes," and that they would not happen again.

Garrow further testified that, to his knowledge, the Tollwaydid not have a broker in the Meyers Road property sale. Heexplained that the board would have had to pass a resolution inorder to retain the services of a broker, and none was passed.Garrow stated that when the board ratified the sales contract onApril 30, 1992, it had a $3.8 million purchase price. Garrow didnot know that on July 17, 1991, Hickman had represented toWaste Management that the board would not accept a price of lessthan $4 million. Garrow testified that he had no knowledge thatdefendant was involved in the transaction, and did not know howEagle became involved or that Eagle did not have a contract withWaste Management. Garrow also did not know that defendant hadreceived $190,000 from the transaction. Garrow testified that, hadhe known these facts, he would not have voted in favor of theresolution to sell the Meyers Road property. Garrow stated that thedeal was discussed in an executive session of the board at whichno mention was made of the broker's commission in the sale.

Garrow testified that he first became aware of defendant'sinvolvement and of the broker's commission in October 1993,when he was told by Robert Douglas. Garrow reported theinformation to the state police. In April 1994, Garrow questionedHickman about Douglas' termination, and Hickman said thatHoward felt that Douglas was saying things detrimental to himpersonally and that he was a "leaker."

Garrow acknowledged that the minutes of the meetingwherein this contract was approved reflected that the board hadbeen apprised of the items on the agenda and had ampleopportunity to consider and discuss each item. Garrow indicatedthat he would have more carefully scrutinized a contract offered byan outside supplier. He testified that he signed the contractfollowing passage of the resolution without having read it "realcarefully" or understanding it. If a contract had been approved bythe board, it was his practice to sign it without reading it. Garrowexplained that he often did not understand the details of contractspresented to him, that is why he relied upon the recommendationsof the Tollway department heads. Garrow testified that he had noreason to distrust either Hickman or Howard. Garrow "guessed"that the commission had been paid by Waste Management. Henever received a copy of People's Exhibit No. 2, the letter fromHickman to Waste Management requiring the insertion of Eagleas broker.

Joseph Haughey testified that he is a commander in theIllinois State Police and is an attorney. In December 1993, he wasin charge of internal investigations and conducted the investigationof this real estate transaction between the Tollway and WasteManagement. Haughey stated that he met with Garrow andDouglas, who later provided him with documents relating to theinvestigation. However, Haughey did not originally receive copiesof several of the State's exhibits.

Haughey testified that in March 1994, he interviewed BenSwislow at the Tollway offices and attempted to interview PaulOlszewski. Haughey stated that Howard insisted on remainingwith Olszewski, asserting that he represented the Tollway and itsemployees. Haughey decided not to conduct the interview, butrequested a copy of the Tollway's file concerning the transaction.Haughey testified that the documents he received from theTollway did not include copies of People's Exhibit Nos. 2, 6, 12,and the last two pages of 11. He stated that Waste Managementfailed to produce People's Exhibit Nos. 12 and the last two pagesof 11, but did produce Nos. 2 and 6. Eagle produced the last twopages of People's Exhibit No. 11 and defendant turned over Nos.2 and 11 when subpoenaed.

Daniel Fusco testified that he is an attorney and was a memberof the Tollway's board of directors in 1991. He reviewedcontracts, sales, and purchase orders for the Tollway. Fusco statedthat any transaction over $10,000 was submitted to the board forapproval and that the board approved over 500 contracts annually.The contracts were generally first presented at operations meetingsduring which board members would have the opportunity toquestion the staff in charge of each contract. Fusco testified thatthe board relied on the Tollway staff, including its general counseland executive director, and did not read through every contract,since many of them were standardized. Fusco stated that he wouldbe more involved with the real estate contracts because that washis area of expertise. Fusco testified that the contract involved inthis case was not one which would have been quickly skimmedover, as it was an important transaction.

Fusco further testified that he recalled the sale of the MeyersRoad property and believed that he had voted to ratify the contract,which had a purchase price of $3.8 million. Fusco stated that, atthe time of the board's vote, he had not seen Hickman's July 17,1991, letter to Berres (People's Exhibit No. 2), was not aware thatHickman represented to Waste Management that the Tollwaywould not accept a purchase price of less than $4 million, and didnot know that defendant was to receive $190,000 of thecommission. Fusco testified that he would have asked morequestions had he known that defendant was receiving funds fromthe transaction and that defendant's participation should have beendisclosed. Fusco stated that there had been a discussion about thecontract during an executive session of the directors and that whenone of the directors asked whether there was a commission on thedeal, Howard replied that there was. Fusco testified that he hadbeen comfortable with the purchase price.

Don Zimmer testified that, in 1992, he was employed with aconsulting engineering firm which provided services for publicand private clients, including the Tollway. Zimmer stated thatPeter Huizenga recommended defendant to him as someone whomight be helpful to his business. Zimmer met with defendant, whoindicated that he was familiar with the Tollway's capitalimprovement program and that he had relationships that couldposition Zimmer's firm to win more Tollway contracts. Zimmertestified that defendant specifically mentioned that Hickman wasone of the people at the Tollway with whom he had a goodrelationship. Zimmer's firm hired defendant and paid him $5,000per month for one year. Defendant introduced Zimmer toHickman. Zimmer stated that hiring lobbyists or consultants is notuncommon to "open the door" for business opportunities.

Arthur Philip, a member of the Tollway's board of directors,testified that he was familiar with the sale of the Meyers Roadproperty. Phillip stated that he had voted in favor of the sale andwas familiar with the general terms of the deal, but that he had notpersonally reviewed the contract. Phillip explained that he is nota lawyer and relied on the Tollway's lawyer and staff for adviceconcerning the merits of the deal. He had not been informed thatEagle was participating in the transaction or that defendant was toreceive $190,000 of a $240,000 commission. Phillip testified that,had he known these facts, he would not have voted in favor of thesale. While Phillip was aware that the Meyers Road property hadbeen appraised for $2.265 million, he did not believe the Tollwayhad received a "great deal" because Waste Management had paidmore per square foot for other properties than it paid the Tollway.

Gayle Franzen testified that he was executive director of theTollway from 1981 to 1984. He was familiar with John Garrow,Hickman and defendant and had been friends with defendant fora number of years. Franzen testified that, in the summer of 1991,Garrow approached him with concerns about the relationshipbetween defendant and Hickman. As a result, Franzen arranged alunch meeting to introduce defendant to Garrow. During the lunch,defendant clearly indicated that he and Hickman were closefriends and admitted that he may have made mistakes with respectto Hickman's position with the Tollway, but stated that he wouldnever embarrass Hickman. Franzen also testified that he metdefendant with Hickman and his family while vacationing onMartha's Vineyard in the fall of 1993. Franzen stated that theconcerns about defendant's activities came from Garrow, not fromhim.

The parties stipulated that, if called, Robert Neal would testifythat he was a member of the Tollway's board of directors in 1992.Neal was provided with the documents concerning the MeyersRoad transaction, but did not read the sales contract in detailbefore voting in favor of it. Neal relied on the Tollway staff,including the recommendations of the chief legal counsel. Neal didnot know of Eagle's participation in the transaction or defendant'sreceipt of $190,000 through Eagle; had he known those facts, hewould not have voted to ratify the contract.

The parties stipulated that, if called, Christopher Berg wouldtestify that, in 1991, he owned a consulting engineering firm andwas approached by defendant late that year. Defendant informedBerg that he had a good relationship with Hickman and promisedthat he could help Berg acquire Tollway work. Berg hireddefendant as a consultant and paid him $5,000 per month fromJanuary 1992, continuing through the time of trial. Defendantobtained business for Berg's firm from the Tollway as well asother state agencies.

The parties stipulated that, if called, Rob Petroelje wouldtestify that he was a part owner of SDI Consultants (SDI) and hemet defendant through Peter Huizenga. Defendant informedPetroelje that he was a close friend of Hickman, knew otherofficials at the Tollway, and could help SDI obtain Tollwaycontracts, as well as promote the firm in the public sector.Petroelje hired defendant as a consultant and paid him $2,000 permonth from May 1993 through July 1994.

The parties also stipulated that the $190,000 check from Eagleto defendant had been deposited and cashed through the checkingaccount of defendant's consulting firm. At the close of the State'scase, defendant filed a motion for judgment of acquittal, which thetrial court denied following extensive argument.

Defendant presented certain evidence by means of stipulation.If called, Lieutenant Michalski of the Illinois State Police wouldtestify that, on March 31, 1994, he interviewed Roger Berres atWaste Management's offices and that Berres stated that defendantwas "not a force" in the Tollway deal. When asked whetheranyone was acting as a real estate broker for this transaction,Berres vacillated between "no" and "I don't know." Berres furthersaid that he had not talked with anyone at Eagle and denied thatWaste Management had any involvement with Eagle. Berres statedthat he was unfamiliar with the term of the contract directingWaste Management to pay the $240,000 fee to Eagle, and thatPaul Olszewski brought Eagle into the contract. Michalski askedBerres if he felt the payment to Eagle was a legitimate businesspractice, to which Berres replied that it may have been "a strategicalliance or outsourccing [sic]."

If called by the defense, Commander Joseph Haughey of theIllinois State Police would testify that he interviewed RobertDouglas on November 23, 1994, and Douglas stated that JohnGarrow had requested that Douglas obtain documents from theTollway. Douglas subsequently asked Paul Olszewski for theMeyers Road file under the ruse of having to research issuesrelating to the annexation of the parcel. Haughey would furthertestify that, during an interview with Roger Berres on April 13,1994, Berres stated that he could not recall who put the initialoffer on the table for this transaction, and that either Olszewski orSwislow of the Tollway introduced the brokerage fee. Later in theinterview, Berres told Haughey that he felt the fee was simply anallocation of purchase price by the seller, and commented thatWaste Management was getting "squeezed" for $240,000 in thenegotiation. Finally, Haughey would testify that, in a November 4,1994, interview, Berres stated that he prepared the July 23 letter ofintent using defendant's law firm letterhead "in the interest ofexpediency and in order to strike the brokerage fee language, butto include the $240,000 fee in the purchase price, which thenamounted to $4,040,000."

It was also stipulated that Berres testified before the grandjury that, sometime prior to receiving the July letter fromHickman, he had made an offer "in the one and a half to twomillion dollar range" for the property. Berres answered "yes" tothe question whether there was any commission or percentage feearrangement with defendant. Berres also testified before the grandjury that he spoke to Olszewski to confirm that Eagle was theTollway's broker.

In ruling, the trial court stated, inter alia, that the partiesseemed to agree that the key witness was Roger Berres and, withregard to his credibility, noted that "lawyers do not make goodwitnesses." The trial court found that the evidence showed that atone point Waste Management was willing to, and did ultimately,pay $4,040,000 for the property, $3.8 million going to the Tollwayand $240,000 to Eagle. The trial court found it apparent that ifWaste Management had known that they could have purchased theproperty for $3.8 million, without the additional brokerage fee,they would have done so, and that if the Tollway had been able toget $4,040,000, they would not have rejected it. The trial courttherefore likened the $240,000 to a "shell game."

The trial court further found that the testimony and documentsshowed that defendant introduced Eagle into the transaction. TheJuly 8, 1991, letter from Berres to defendant, People's Exhibit No.1, set forth a proposal of $4 million. In the July 17, 1991, letter,People's Exhibit No. 2, faxed from Future Realty at the sameaddress as defendant's law office, Hickman acknowledges the $4million offer, and states that it might take a little more for theTollway board of directors to approve the transaction. The courtnoted that People's Exhibit No. 2 was also the first writtendocument "in which the broker is injected." The trial court foundthat the relationship between defendant and Hickman was clearlyestablished and that the two men realized Waste Management hada $4 million dollar offer on the table and the Tollway would accept$3.8 million, as it was substantially over the appraised value. Thecourt therefore concluded that the $240,000 was "siphoned off" toEagle, with a portion ultimately being paid to defendant. The trialcourt accordingly found defendant guilty on "Count 5, which istheft in excess of $100,000.00."

On direct appeal, defendant argued, inter alia, that the Statefailed to prove him guilty beyond a reasonable doubt. Specifically,defendant argued that the State failed to prove he made anyaffirmative misrepresentation or that Waste Management relied onany affirmative misrepresentation, and that the State failed toprove ownership of the stolen property. The appellate courtrejected these arguments. No. 2-97-1194 (unpublished orderunder Supreme Court Rule 23). We now affirm the appellate court.

In reviewing the sufficiency of the evidence to sustain averdict on appeal, the relevant inquiry is "whether, after viewingthe evidence in the light most favorable to the prosecution, anyrational trier of fact could have found the essential elements of thecrime beyond a reasonable doubt." (Emphasis in original.) Jacksonv. Virginia, 443 U.S. 307, 318-19, 61 L. Ed. 2d 560, 573, 99 S. Ct.2781, 2788-89 (1979); People v. Thomas, 178 Ill. 2d 215, 231-32(1997); People v. Howery, 178 Ill. 2d 1, 38 (1997). Under thisstandard, a reviewing court will not substitute its judgment for thatof the trier of fact on issues of the weight of evidence or thecredibility of witnesses. Thomas, 178 Ill. 2d at 232. Indeed, it isthe responsibility of the trier of fact to "fairly *** resolve conflictsin the testimony, to weigh the evidence, and to draw reasonableinferences from basic facts to ultimate facts." Jackson, 443 U.S.at 319, 61 L. Ed. 2d at 573, 99 S. Ct. at 2789; Howery, 178 Ill. 2dat 38. This same standard of review applies regardless of whetherthe evidence is direct or circumstantial (Thomas, 178 Ill. 2d at232), and regardless of whether the defendant receives a bench orjury trial (Howery, 178 Ill. 2d at 38).

Applying this standard, we must reject defendant's claim thathe was not proven guilty beyond a reasonable doubt. In this court,defendant contends that the State failed to prove certain elementsof the offense, arguing that, while defendant helped WasteManagement obtain the Tollway's property "through influence,relationships, and the power that comes from having largeamounts of available money," defendant's conduct "absolutelydoes not offend Illinois' criminal provision involving theft bydeception." However, defendant's attempt to diffuse his guilt byimpugning the motives and integrity of the parties to thistransaction fails, where it does not obscure the fact that he, inaddition to helping Waste Management obtain the Meyers Roadproperty, took $240,000 which the evidence shows those partiesdid not intend him to have.

One commits theft by deception when he "knowingly ***[o]btains by deception control over property of the owner" and"[i]ntends to deprive the owner permanently of the use or benefitof the property." 720 ILCS 5/16-1(a)(2)(A) (West 1992); Peoplev. Davis, 112 Ill. 2d 55, 59 (1986); People v. Kaye, 154 Ill. App.3d 562, 571 (1987). In order to convict a defendant of theft bydeception, the State must prove that: (1) the victim was induced topart with money; (2) the transfer of the money was based upondeception; (3) defendant intended permanently to deprive thevictim of the money; and (4) defendant acted with specific intentto defraud the victim. See People v. Moran, 260 Ill. App. 3d 154,160 (1994); People v. McManus, 197 Ill. App. 3d 1085, 1096(1990).

We first address defendant's contention that the appellatecourt erred in upholding defendant's conviction where WasteManagement, "the purported victim of [defendant's] theft, was,under the State's theory, involved in the alleged scheme 'up to itseyeballs' and where the trial judge made a factual finding that thetransaction at issue was not considered by its principals to be anarm's length business deal." While defendant argues that these"facts" preclude either a finding that deception occurred or thatany party gave money in reliance on any affirmativemisrepresentation, a careful review of the record shows thatdefendant has taken these statements entirely out of context.

While the State did acknowledge in closing argument thatWaste Management was "in this up to its eyeballs," defendant andthe State agree that this statement referred to Waste Management'sinvolvement in "influence-peddling." Thus, while admitting WasteManagement's knowledge of the close relationship between its"consultant," defendant, and the Tollway's executive director,Hickman, the State in no way imputed knowledge of the theft toWaste Management. Rather, the prosecutor went on to argue inclosing that " to allege *** that Roger Berres knew about this andwent along with it, I submit to you, Judge, is absurd." Theprosecutor further argued that to accept defendant's theory, "theywould have to convince you that Waste Management was actuallyable to pay [defendant] as a consultant, anything they want upfront and lawfully, [yet] would go this far out of their way to makea crime out of it," by choosing "this incredible means ofsmuggling their own money to their own lawyer or consultant."

Defendant's assertion that the trial court found the principals,Waste Management and the Tollway, were not involved in an"arm's length transaction" is also a mischaracterization of therecord. It is obvious from an examination of the court's remarksthat the court was referring to the relationship between defendantand Hickman, not between the principals. As previously stated, thetrial court found that if Waste Management had known it couldpurchase the property for $3.8 million, it would have paid nomore, and that if the Tollway had known it could get $4,040,000for the property, it would have done so. Thus, defendant has failedto show that the trial court believed that Waste Management or theTollway were dealing at less than arm's length.

Nor does the evidence presented at trial establish knowledgeof defendant and Hickman's plan by anyone involved except forBlonstein and Erwood of Eagle and Howard, the Tollway's chieflegal counsel, who all testified under a grant of immunity. Instead,the evidence showed that when Constantino, who knew that WasteManagement had not retained Eagle, reviewed the first draft of thecontract from defendant, he found the language regarding thebrokerage fee unacceptable, and asked Berres about it. Berres toldConstantino that "this was the way the Tollway wanted thetransaction," so Constantino created a draft contract placing theresponsibility for the broker's commission on the Tollway.

When this document reached Olszewski at the Tollway, heprotested the language suggesting that Eagle might be the realtorfor the Tollway and that the Tollway approved the commission.Olszewski attempted to redraft the contract to show that theTollway was not responsible for the realtor. That draft was sent toWaste Management, where Constantino and Berres reviewed itand found the language unacceptable because it made it appearthat Eagle was Waste Management's broker, which was not thecase. Berres and Constantino therefore changed the offensivelanguage, adding certain provisions including that "[s]ellerwarrants that said commission does not exceed $240,000." Whenthis draft was sent to the Tollway, Olszewski again protested butwas told by Howard that they would have to "live with it." Thecontract was ultimately signed in this form, with WasteManagement believing that it was paying to the Tollway's brokera commission out of the purchase price due the Tollway, and theTollway believing that the broker's commission was to be paid byWaste Management over and above the price it was receiving forthe land being sold.

Having found that, contrary to defendant's contention, WasteManagement and the Tollway were not willing participants in thisscheme, or "shell game," we return to the question of whether theevidence presented at trial supports a finding that defendantobtained the $240,000 by deception. The term "deception," forpurposes of the theft statute, means, inter alia, to knowingly"[c]reate or confirm another's impression which is false and whichthe offender does not believe to be true," or "[f]ail to correct afalse impression which the offender previously has created orconfirmed," or "[p]revent another from acquiring informationpertinent to the disposition of the property involved." 720 ILCS5/15-4(a), (b), (c) (West 1992); see Davis, 112 Ill. 2d at 59-60.Here, the trial court found that the deception lay in the fact that theland's purchase price was manipulated to divert funds from theTollway to defendant, while not substantially changing the totalamount of money Waste Management paid for the property. Webelieve the evidence clearly established that defendant knowinglyparticipated in this deception.

At trial, the State adduced the following facts and reasonableinferences therefrom: In the spring of 1991, defendant retainedEagle to act as the broker of record for the Meyers Roadtransaction, meeting with Blonstein and offering him a "dream"deal wherein Eagle would receive $50,000 and would not berequired to do any work. Thereafter, on July 8, 1991, Berres senta draft letter to defendant, People's Exhibit No. 1, in which WasteManagement offered $4 million to purchase the property andwhich did not contain any provision for a broker's fee. AlthoughEagle was never hired by either Waste Management or theTollway, People's Exhibit No. 2, Hickman's July 17, 1991, letter,sent via defendant and the fax machine he routinely used at FutureRealty, directed Waste Management to include Eagle as the brokerand set the amount of commission at 6%. While there is no directevidence that defendant relayed Berres' $4 million offer toHickman, this July 17 letter references a Waste Management"proposal of July 10, 1991," and there is no evidence in the recordof such a proposal other than Berres' July 8 letter. Additionally,Hickman's letter responds: "My Board and I would reactnegatively to any offer below four million dollars and it wouldprobably take a little more than that to gain our approval."Moreover, the brokerage fee was set at $240,000, which is 6% of$4 million. Thus, the trial court could reasonably infer thatdefendant and Hickman, by creating a false impression that therewas a broker in the transaction entitled to be paid, manipulated theprice of the property to divert $240,000 to defendant while thetotal price still appeared to be $4 million.

Other evidence presented during trial indicated that defendantconfirmed the false impression that a legitimate broker wasinvolved by including in his billings to Waste Managementreferences to meetings and telephone calls with the broker.Hickman, for his part, did not share with the Tollway's staff therepresentations he had made in the July 17, 1991, letter, i.e., thathe had requested Eagle be included as the broker and paid acommission, and that the Tollway would not accept less than $4million for the property. Indeed, Hickman told the board, asreflected in the final contract, that the Tollway would receive $3.8million for the deal.

The evidence also showed, as earlier detailed, that due todefendant and Hickman's control of information between theparties, Waste Management and the Tollway each believed thebroker to be working for the other. Finally, it was uncontrovertedthat defendant received $190,000 of the commission which wasostensibly to go to Eagle. Thus, the State proved beyond areasonable doubt that, through defendant's deceptive acts ofcreating, confirming, and failing to correct false impressions madeto Waste Management and the Tollway which defendant knew tobe untrue, and preventing those parties from acquiring informationpertinent to the disposition of the sale proceeds, defendantorchestrated and conducted a theft of $240,000 from the sale of theMeyers Road property.

Finally, defendant claims that he cannot be properly foundguilty of theft under count V of the indictment because that countnamed only one victim, Waste Management, and the trial court"insisted that restitution be paid, not to the identified victim, butto [the Tollway]." However, we agree with the State thatdefendant's argument is fatally flawed because he mistakenlyasserts that Waste Management was the only victim alleged incount V.

Defendant was convicted of count V of the indictment, whichreads, in pertinent part:

"Joseph S. Kotlarz committed the offense of Theft Over$100,000.00 in that the said defendant obtained, bydeception, control over certain property being $240,000,said property being the property of Waste Management,Inc., deposited into escrow for the purpose of purchasingcertain real property from the Illinois State Toll HighwayAuthority, *** with the intent to deprive the partieshaving a lawful interest in said funds, Waste ManagementInc. and the Illinois State Toll Highway Authority,permanently of the benefit of said funds, in that saiddefendant retained Eagle Real Estate Services, Ltd. for thepurpose of receiving the $240,000.00 pursuant to anagreement that said defendant receive $190,000.00 whileEagle Real Estate Services, Ltd. retained $50,000.00; inviolation of 720 ILCS 5/16-1(a)." (Emphasis added.)

For purposes of the theft statute, an owner is defined as "aperson, other than the offender, who has possession of or any otherinterest in the property involved, even though such interest orpossession is unlawful, and without whose consent the offenderhas no authority to exert control over the property." 720 ILCS5/15-2 (West 1992); see Moran, 260 Ill. App. 3d at 160; Kaye,154 Ill. App. 3d at 571. A reading of count V makes it clear thatboth Waste Management and the Tollway were named as ownersof "certain property being $240,000" by virtue of their "lawfulinterest in said funds," that interest being that the funds had beendeposited into escrow by Waste Management "for the purpose ofpurchasing certain real property from the [Tollway]." Thus, wherecount V alleged that both Waste Management and the Tollway hadan "interest in the property involved," we find that it sufficientlynamed both parties as victims of defendant's theft. See Kaye, 154Ill. App. 3d at 571 (fact that defendant was paid alleged bribe withmoney supplied by FBI rather than by victim did not preventvictim from being "owner" of property within meaning of theftstatute, where victim's "interest" in bribe money was clear in lightof defendant's threats to him if he should fail to pay and hiscapacity as middleman for FBI).

Further, we agree with the State that it proved the funds atissue were "released pursuant to and authorized only by thecontract," and that "[d]efendant had no authority to get the fundshere before both parties signed the contract." Therefore, the trialcourt could properly find defendant was guilty of theft from bothparties. Additionally, we see no abuse of discretion in the trialcourt's restitution order; given the evidence that WasteManagement had made a $4 million offer for the land prior to theinsertion of deception into the contract negotiations, the courtcould reasonably infer that the siphoned funds would have beenpaid out to the Tollway.

In conclusion, after viewing the above evidence in the lightmost favorable to the prosecution, we find that a rational trier offact could have found the essential elements of theft by deception,as charged in count V, proved beyond a reasonable doubt.Defendant also argues before this court that the lower courts erredby expanding the theft by deception statute to "combat publiccorruption." However, as we have found that defendant wasproperly convicted of theft by deception, we need not address thisadditional attempt by defendant to construe his conduct as simple"influence peddling."

Accordingly and for the foregoing reasons, we affirm thejudgment of the appellate court.

Affirmed.

JUSTICES BILANDIC and McMORROW took no part in theconsideration or decision of this case.

JUSTICE HEIPLE dissents [without opinion].