People v. Day
354 Ill. Dec. 557
Ill. App. Ct.2011Background
- Ann M. Day was convicted after a bench trial of 10 counts of theft and 16 counts of forgery arising from taking about $137,937 from her law firm with former partner Karen Tietz.
- Day and Tietz formed Day & Tietz P.C. in 2003 as a professional service corporation; they allegedly agreed to an 85/15 split in Day’s favor, though no signed agreement existed.
- The firm’s funds included a business operating account and a client trust account; Day allegedly deposited checks into her personal account and sometimes drew unauthorized payments.
- Pleadings and trial testimony described an oral profit-sharing plan and contemporaneous evidence of Day’s draws beyond salary, including a $3,500 check (exhibit 45) deemed unauthorized by the court.
- The trial court found Day guilty on all counts and ordered restitution of $137,937.23 to Tietz, plus probation and jail time; Day appealed challenging sufficiency of evidence, intent, restitution amount, and payment provisions.
- The appellate court affirmed, holding that the evidence supported the value and intent elements, the restitution statute authorized the award, and the payment plan was reasonable given Day’s circumstances.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Value of wrongfully taken funds | State argued value exceeded $100,000; need not subtract Day’s co-owner interest. | Day claimed value should reflect her share of profits and would be less. | Value established; co-owner interest not required to reduce value. |
| Intent to permanently deprive | State proved Day intended to deprive firm/Tietz of funds. | Day claimed future accounting could reimburse, not proven concealment. | Sufficient evidence of intent to permanently deprive. |
| Restitution amount authorized | Restitution matched actual losses to victim(s). | May overstate losses by not accounting for Day’s interest. | Restitution amount statutorily authorized; not void. |
| Restitution payment plan adequacy | Fixed monthly amount appropriate to ensure payment. | Consider Day’s ability to pay; 10% of income preferred. | Court properly ordered fixed monthly payments; no reversal or remand required. |
Key Cases Cited
- People v. Moore, 375 Ill.App.3d 234 (2007) (sufficiency review standard)
- People v. Whitney, 188 Ill.2d 91 (1999) (statutory interpretation principle)
- In re Detention of Lieberman, 201 Ill.2d 300 (2002) (de novo review of statutory issues)
- People v. Caballes, 221 Ill.2d 282 (2006) (criminal-appeal standards and interpretation)
- Dowd v. Dowd, Ltd., 352 Ill.App.3d 365 (2004) (fiduciary duties and forfeiture principles)