dissenting:
I respectfully dissent from the majority’s opinion because the State failed to prove its case beyond a reasonable doubt.
The defendant was convicted of the offense of theft by deception as provided by section 16—1(b)(1) of the Criminal Code of 1961 (Ill. Rev. Stat. 1985, ch. 38, par. 16—1(b)(1)), which provides:
“A person commits theft when he knowingly:
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(b) Obtains by deception control over property of the owner; [and]
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(1) Intends to deprive the owner permanently of the use or benefit of the property ***.”
Deception is defined in section 15—4(e) of the Criminal Code as follows (Ill. Rev. Stat. 1985, ch. 38, par. 15—4(e)):
“As used in this Part C, ‘deception’ means knowingly to:
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(e) Promise performance which the offender does not intend to perform or knows will not be performed. Failure to perform standing alone is not evidence that the offender did not intend to perform.”
As stated in the majority opinion, three elements must be proved to sustain the charge of theft by deception, namely, (1) the owner of the money which is the subject of the charge be induced to part with it; (2) that deception be the sine qua non for the transfer of the money; and (3) the recipient intends to permanently deprive the owner of the money. People v. Jensen (1982), 103 Ill. App. 3d 451, 454.
Accordingly, the State was required to prove that the defendant promised to pay Kennay’s taxes; that he did not intend to pay said taxes at the time he agreed to perform Kennay’s accounting service; and that the defendant knew at the various times he accepted Ken-nay’s checks that he could not pay said taxes. The defendant deposited 12 checks from Kennay between October 26, 1984, and May 3, 1985. There is no evidence that the defendant, before and at the time he deposited the checks from Kennay, intended to appropriate the funds represented by said checks. The defendant deposited the checks in the bank account of another client, namely, National Building Service, because his personal bank account was “tied up” by reason of checks he had received which were not paid, and, therefore, his bank account was not available to write checks that would be necessary in order to pay Kennay’s taxes. Subsequently, that bank account was frozen by reason of the bankruptcy of National Building Service. At the time the defendant received the checks from Kennay and at the time he deposited them in the National Building Service account, he did not know that National Building Service was going to be thrown into bankruptcy, and there is no evidence to the contrary. The evidence does show that the defendant was endeavoring to assist National Building Service with its financial problems; in doing so, the defendant put a mortgage on his personal residence and also secured a $25,000 loan from another client; these funds were also deposited in the National Building Service account and were frozen by the bankruptcy.
The cases involving theft by deception state that surrounding circumstances are of great importance in determining whether in a specific case there was deception. The surrounding circumstances in this case make it clear that the funds were unavailable for the purpose for which the defendant took possession thereof due to the unforeseeable bankruptcy of National Building Service. It is not reasonable to conclude that the defendant would have deposited the funds in the National Building Service account if he had known or had any basis for knowing that the funds would become unavailable by reason of bankruptcy. The bankruptcy of National Building Service is a fact unrebutted by the State. It occurred subsequent to the time defendant received the last check from Kennay on May 3,1985.
There is no question that defendant failed to perform his agreement to pay Kennay’s taxes; however, the facts fall squarely within that portion of the definition of deception heretofore set forth which states, “[failure to perform standing alone is not evidence that the offender did not intend to perform.” (Ill. Rev. Stat. 1985, ch. 38, par. 15—4(e).) The foregoing facts and the reasonable inferences therefrom demonstrate that the State failed to prove that the defendant did not intend to perform his agreement with Kennay or that he intended to permanently deprive Kennay of his money at the various times the checks were deposited and therefore must be accepted.
The majority opinion cites People v. Ballard (1978), 65 Ill. App. 3d 831, 836, for the proposition that specific intent to defraud is a question of fact, and it may be determined by the jury from the surrounding circumstances. In that case the facts were stated by the court as follows:
“[I]n the case before us the evidence clearly showed that defendants here did not even attempt to honor their promises to their investors; there was sufficient evidence to infer that the failure of defendants’ enterprise came not from over-enthusiasm or business ‘naivete,’ but that the promises mads were never intended to be fulfilled. Therefore, we hold that there was sufficient evidence to find the defendants guilty beyond a reasonable doubt.” (Emphasis added.) (65 Ill. 2d at 836.)
In this case, the defendant had every intention of using the National Building Service account to pay Kennay’s taxes; however, he was subsequently frustrated from doing that by the bankruptcy. The majority opinion endeavors to distinguish this case from People v. Rolston (1983), 113 Ill. App. 3d 727. In this case and in Rolston, the money was secured by the respective defendants to be used to pay certain obligations that the respective defendants would incur in carrying out the promises made to the respective victims. In both of these cases, the defendant lied to the victim; in this case, the defendant stated that the notice of tax delinquency was due to bureaucratic foul-up and that the taxes had been paid. In Rolston, the defendant lied and told his customers that the windows had been ordered or that they would be delivered soon. In the Rolston case, the victim’s money had been deposited into the defendant’s own bank account and had been spent for his own expenses. Here, Kennay’s money was not deposited .in the defendant’s bank account but was placed in a client’s bank account because the defendant’s account had been “tied up.” The defendant told Kennay that his taxes had been paid, while in Rolston, “the defendant was unable to fulfill a contract because he spent the down payment.” The majority states that the defendant led Kennay deeper into debt and lied to cover his tracks; however, the false statements of both defendants here and in Rolston were very similar; in fact, the defendant in Rolston used the same tactics on several customers.
Further, the majority states that the defendant never acknowledged to Kennay that he could not perform; however, in his testimony before the grand jury, he stated as follows:
“Q. Okay. Anything further?
A. Whether you find me guilty or not, I want to make one statement. I don’t care what anyone says, I never received a dime of any money whatsoever and I never did. And whether you find me guilty or not, I intend that I will pay Mr. Kennay back, because I know Mr. Jerry Fleming will not pay Mr. Ken-nay back. I will pay Mr. Kennay back, may God be witness to my soul that I will do so, sir.” (Jerry Fleming was the principal in National Building Service.)
The majority asserts that the defendant took Kennay’s money on a pretense that it would be used to pay his taxes and that defendant never intended to use it for that purpose. Further, the majority states that the defendant deposited Kennay’s money in the account of a “failing business.” (175 Ill. App. 3d at 707.) These two inferences are not supported by the evidence. As previously stated, the defendant also deposited money he borrowed on his own home, as well as Ken-nay’s money, into the National Building Service account, and at that time, the defendant did not know that this account would subsequently be tied up by bankruptcy. Certainly, had he known that this would occur, he would not have deposited into that account money he borrowed on his own home.
Under the foregoing facts, the inference does not follow that defendant was a “shrewd” accountant, taking money from a client to forward his own designs. (175 Ill. App. 3d at 708.) Defendant was a 51-year-old trained accountant who had been in business for approximately 25 years, and the record indicates that he enjoyed reasonable success; he acknowledged his debt to Kennay as previously stated; however, he was not able to continue his business due to conviction in another case which is not part of the record here.
As previously stated, the State has the burden of proving beyond a reasonable doubt that the defendant had the intent to defraud Ken-nay at the various times he received the 12 checks. It is stated in Rolston as follows:
“A defendant’s failure to fulfill a contract is not proof of a specific intent to defraud. *** Even if the funds are used for the proprietor’s personal expenses, that action is no proof of felonious intent; after all, there is no substantial difference between cashing the check directly or depositing the check first and drawing a legitimate salary through the use of those funds later. *** Again, a failure to refund money to dissatisfied customers is not necessarily proof of a specific intent to defraud. [Citation.]” Rolston, 113 Ill. App. 3d at 732.
The Rolston case held that the defendant’s failure to perform alone did not establish a lack of intent to perform, and the court found the fact that the defendant spent the down payments did not give rise to an inference of criminal intent even though he could not later place the promised orders with the window suppliers. Subsequently, Rolston explained that he had to order 100 windows at a time due to the lack of funds, and he was unable to perform as promised. Applying the Rolston case reasoning here, it is likewise clear that the defendant did not spend Kennay’s money for his own benefit, and it is uncontradicted that defendant was unable to withdraw the monies from the National Building Service account because of bankruptcy. The majority opinion concedes that the defendant’s explanation as to the unavailability of Kennay’s funds was uncontradicted by the State’s case. Furthermore, there was' no evidence of collusion between the defendant and National Building Service, and there was no evidence of any circumstances known to the defendant prior to the bankruptcy which would have made his stated plan to pay Kennay’s tax bills from the National Building Service account unlikely or impossible to fulfill. This type of evidence was the sine qua non to proving defendant was guilty of deception.
The State failed to produce any evidence that rebutted critical elements of defendant’s testimony before the grand jury. (Because that testimony was read to the jury, and defendant did not testify at trial, the jury was in no better position than this court in determining the defendant’s credibility.) Rather than presenting the relevant records which could conceivably have undercut defendant’s testimony regarding the loss of the money due to National Building Service’s bankruptcy, the State chose not to produce any such evidence, despite defendant’s assertions that he put the tax money in another client’s account and that, thereafter, the money became tied up in bankruptcy proceedings. Further, the State failed to rebut defendant’s grand jury testimony that Kennay had proposed that the checks be written out to the defendant. The State did not come forward with sufficient evidence to prove that defendant took complainant’s checks by deception, and it failed to prove beyond a reasonable doubt that defendant acted to deprive complainant permanently of the use or benefit of his money.
The defendant was convicted of theft in another case which was pending during the time frame of defendant’s trial in this case; however, there was no evidence in the record here prior to the jury verdict in this case which in any way furnished evidence against the defendant; therefore, that case and defendant’s subsequent conviction cannot properly be considered as evidence against the defendant here.
This court has a duty to reverse a conviction based upon a record which fails to establish defendant’s guilt beyond a reasonable doubt. (Rolston, 113 Ill. App. 3d at 733.) Under the evidence and surrounding circumstances of this case, the defendant’s conviction should be reversed.