People v. Bochenek
149 N.E.3d 244
Ill. App. Ct.2020Background
- Defendant Dominik Bochenek was convicted by a six-person jury of identity theft for using Anthony Fatigato’s Chase card to buy cigarettes at a Palatine (Lake County) gas station; he was sentenced to 30 days periodic imprisonment and 30 months’ probation.
- Indictment also charged use of an unissued card (Itasca), but the court directed a verdict for that count; defendant consistently claimed he believed he had permission because his girlfriend, Alexi Kern, gave him the cards.
- The State introduced two other-crimes incidents (May 17 and June 17–18, 2015) involving similar thefts from vehicles, use of victims’ cards at gas stations to buy cigarettes, the same black vehicle, and Kern’s presence; the court admitted the evidence for identity, intent, plan, and absence of mistake with limiting instructions.
- Defendant filed a pretrial motion to dismiss for improper venue because the Palatine transaction occurred in Lake County; the trial court denied the motion under the special identity-theft venue statute permitting venue where the victim resides.
- On the record, defense counsel stated he had discussed a six-person jury with defendant; the court asked defendant in open court and he confirmed choosing a six-person jury; jury selection and trial proceeded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether 720 ILCS 5/1-6(t) (special venue for identity theft) is constitutional | Statute valid; defines loci of offense (where act occurred, where info used, or where victim resides), consistent with Illinois Constitution when read with identity-theft statute | Statute conflicts with constitutional right to be tried in county where offense occurred because victim's residence is not an element of the offense | Statute constitutional; read in pari materia with identity-theft statute, venue may be where physical acts occur or where victim’s identifying information reposes (victim’s residence) |
| Whether defendant knowingly waived right to 12-person jury | Record shows counsel discussed jury size with defendant and court asked defendant in open court; defendant affirmed choice to proceed with six-person jury | Record silent whether defendant knew he had a right to 12 jurors; no explicit on-the-record waiver of 12-person jury | Waiver was knowing; counsel’s representation plus the court’s direct questioning of defendant and notice to venire supported a valid waiver |
| Whether trial court abused discretion admitting other-crimes evidence (Garza incident) | Other-crimes evidence highly probative: close temporal proximity, striking factual similarity, same vehicle, signature, Kern present; limiting instructions given; probative value outweighed any prejudice | Garza evidence lacked proof defendant knew the card was stolen and was prejudicial and cumulative beyond Merola evidence | No abuse of discretion; Garza evidence admissible as probative of intent, absence of mistake, and modus operandi; even if error, admission was harmless beyond a reasonable doubt |
Key Cases Cited
- Kakos v. Butler, 2016 IL 120377 (statutory constitutionality review and presumption of constitutionality)
- People v. Pikes, 2013 IL 115171 (standard for admitting other-crimes evidence)
- People v. Illgen, 145 Ill. 2d 353 (factors for evaluating other-crimes evidence: probative value, temporal proximity, similarity, prejudice)
- Watt v. People, 126 Ill. 9 (historical interpretation of venue/‘vicinage’ language and legislative flexibility)
- People v. De La Paz, 204 Ill. 2d 426 (State may waive defendant’s forfeiture of an appellate issue)
- People v. Boyd, 366 Ill. App. 3d 84 (other-crimes evidence admissible as modus operandi where highly similar)
- People v. Bedoya, 325 Ill. App. 3d 926 (other-crimes evidence properly excluded when unrelated and unduly prejudicial)
- People v. Matthews, 304 Ill. App. 3d 415 (comparison of acquiescence/waiver record on jury-size issue)