dissenting:
This appeal involves a series of facts which the majority opinion concludes is sufficient to prove defendant guilty of theft over $300 by deception. (Ill. Rev. Stat. 1985, ch. 38, par. 16 — 1(b)(1).) I do not agree with that conclusion. I, therefore, respectfully dissent. There is no dispute that the first element of the offense was proven. The Board was induced to part with $5,000. After carefully reviewing the evidence, however, I find that the State failed to meet its burden of proof on either of the other two elements, deception and permanent deprivation, so the conviction must, therefore, be reversed.
In order to sustain the deception and permanent deprivation elements, it is necessary to show that defendant deceived the Board into giving him the $5,000 and had no intention of ever rehabilitating the building. Undoubtedly, defendant’s almost immediate conversion of the $5,000 is damaging. So, too, are the minutes of the January 11, 1984, meeting which clearly set out the tasks defendant was hired to do. However, even the Board members in attendance at that meeting were not in agreement about defendant’s role in the rehabilitation of the building. Finally, the investigation into the Denverside Realty Company done by the St. Clair County State’s Attorney’s office was damaging to defendant. In affirming the conviction, however, the majority almost totally ignored defendant’s evidence. A defendant’s failure to fulfill a contract is not proof of a specific intent to defraud. (People v. Rolston (1983), 113 Ill. App. 3d 727, 448 N.E.2d 965; see also People v. Jensen (1982), 103 Ill. App. 3d 451, 431 N.E.2d 720.) Moreover, a business man who receives a down payment can be expected to utilize that money. Even if the funds are used for the proprietor’s personal expenses, that action is not proof of felonious intent. 113 Ill. App. 3d at 732, 448 N.E.2d at 968.
Although the circumstantial evidence is damaging to defendant, I find that the State failed to prove that defendant intended to permanently deprive the Board of the money. Defendant’s actions following his receipt of $5,000 constitute a reasonable doubt. Criminal intent and deception are lacking where defendant placed an ad in a newspaper requesting proposals for bids on the rehabilitation of the Park District building. Although no bids were submitted, this does not necessarily mean defendant was not doing his job. There is a fair inference that no one was interested in the work offered. The letter written to the Board in care of Mr. Howard is dispositive of the fact that defendant had no criminal intent. Had he intended to deprive the Board permanently of its $5,000, no letter would have ever been written.
The majority finds this letter to be of little persuasive value because it was not written until June 1984, and the State’s Attorney’s office learned of the $5,000 check sometime in the middle of January. What the majority opinion fails to consider is the complete disarray the Board was in at this time. The State’s investigation in January was directed toward the Board itself, not defendant. Had defendant not written a letter to the ad hoc Board explaining his receipt of $5,000, apparently no action would have been taken against defendant. Once the Board was made aware of this disbursement to defendant, it made no attempt either to get back the $5,000 or to have defendant complete the work. Defendant received no reply to his letter until nearly 10 months later when he was indicted on this charge.
By this dissent, I do not mean to infer that I condone defendant’s actions. As an attorney on retainer, he certainly owed more to the Board than he provided them. However, as an attorney, he cannot be held to any higher standard as a criminal defendant. While reasonable persons might suppose or conjecture that defendant did not intend to do the work, proof of this element must meet the same evidentiary standard of guilt beyond a reasonable doubt that is applicable to every criminal offense. The State failed to prove beyond a reasonable doubt that defendant obtained the money by deception and that he intended to permanently deprive the Board of its money.