delivered the opinion of the court:
Dеfendant, Michael L. Perry, appeals from his conviction in the circuit court of Du Page County of theft by deception (720 ILCS 5/16— 1(a)(2)(A) (West 2000)). We affirm as modified.and remand for a new sentencing hearing.
I. BACKGROUND
Defendant was convicted at a jury trial of theft by deception (720 ILCS 5/16 — 1(a)(2)(A) (West 2000)) for failing to pay charges related to a hotel room he and his wife and children used. At trial the following evidence was presented. The State called Kimberly Turnage, who was the senior sales manager at the Embassy Suites, in Lombard, Illinois. Her responsibilities included booking rooms for lodging and meetings and negotiating rates. In January 2000, Turnage was contacted by defendant. Dеfendant was already staying at the Embassy Suites. He indicated to Turnage that he wished to negotiate a long-term rate because he would be staying for an extended time for business reasons.
As a result of their conversation, Turnage drafted a confirmation letter containing different stay dates and a discounted room rate. Defendant then sent a letter to Turnage indicating that he wished to set up direct billing to his company, Prolific Development Corp. Defendant’s letter also contained various trade references. The confirmation letter sent by Turnage was signed by defendant and returned to Turnage. Turnage then passеd these documents on to the Embassy Suites accounting department.
On cross-examination, Turnage admitted that defendant’s letter to her requested a reduction in the rate quoted in the confirmation letter. However, defendant did eventually accept the rate in the confirmation letter by signing it. Further, Turnage admitted that she had more than one conversation with defendant regarding the room rate. Turnage also did not request a deposit on the contract because defendant was already staying at the hotel when he contacted Turnage. However, Turnage did at one point prepare a credit cаrd authorization letter because defendant wished to pay some of his charges with the credit card of someone named Brian Green. The letter was prepared so that Green could authorize the use of his credit card to pay some of defendant’s room charges. Turnage further admitted that none of the vendors defendant listed as references was checked.
On redirect examination, Turnage stated that account balances and direct billing were not part of her duties. Further, she testified that the credit card authorization letter prepared for Green’s signature had never been signed. Howеver, she was unaware of whether any charges were incurred on Green’s card, as this knowledge was beyond the scope of her duties. On re-cross-examination, Turnage indicated that the credit card authorization letter was faxed to Green.
The State also called Sandra Deen Neely to the stand. Neely was the director of human resources at the Embassy Suites in downtown Chicago. Neely had previously worked at the Embassy Suites in Lombard as the assistant deputy manager responsible for day-to-day operations. As the assistant deputy manager, Neely became familiar with the guests at the hotel, especiаlly the longer-term guests. Neely was the assistant deputy during the period of February 2000 through May 2000. During this time, she became familiar with defendant because he was a long-term guest. Neely estimated that she had contact with defendant about four times, which consisted of just greetings.
Although Neely had not spoken with defendant about billing or his account, she did become aware around April or May 2000 that there was a problem with defendant’s billing and his account. This information was relayed to her by the controller of the hotel, Karen Trajkovich. Trajkovich was responsible for billing and accounting. Trajkovich provided Neely with defendant’s letter requesting billing dirеctly to Prolific and with defendant’s list of references. Both documents were on “Prolific Development Corp.” letterhead, which included an address, phone number, fax number, and e-mail address. The letter indicated that defendant was the president of Prolific. The documents also listed defendant and Lee Mandel, CPA, as the contact persons. Neely attempted to contact defendant through the e-mail address listed on the letterhead but was unsuccessful. Neely also contacted Lee Mandel, and he informed her that he was not connected with Prolific. Neely then contacted Budget Rent-A-Car because dеfendant had listed the company as a trade reference. Budget informed Neely that defendant did not have a valid account with the company. She was aware from defendant’s file that his charges were in excess of $15,000. According to Neely, defendant never contacted her or made any efforts to pay his bill.
On cross-examination, Neely admitted that up until the point that she became involved with defendant’s account, the responsibility for the account would have been solely with the controller. Further, she testified that the accounting department normally set up a process through the corporаte office to check trade references before setting up direct billing. However, that was not done in this case, because the accounting department did not feel that it had all of the information that the corporate office required. Nonetheless, the general manager of the hotel signed off on the direct billing request without checking any of defendant’s trade references. Neely admitted that even though the references were submitted by defendant in January 2000, they were not checked until May 2000. At the time defendant and his family initially checked in, they paid for their room with a credit card.
The State next сalled Trajkovich to the stand. She testified that she had been employed by the Embassy Suites in Lombard since November 1992 and has been controller since July 1999. Trajkovich was approached by Turnage to set up direct billing for defendant. Turnage provided Trajkovich with the letter and reference sheet from defendant. Trajkovich testified that the usual practice for approving direct billing requests involved running all application materials through the corporate office. This process required Trajkovich to supply background data such as bank information. The basic process involved a type of credit сheck based on the person’s banking information. However, Trajkovich did not have the required information with respect to defendant.
Trajkovich then informed Turnage that direct billing could not be set up due to the lack of information. Subsequently, the general manager at the time, Robert Hjort, approached Trajkovich and told her to set up direct billing for defendant anyway and that Hjort would approve it. As a result of this request, Trajkovich set up the direct billing account for defendant. The account was set up to bill Prolific as defendant had requested in his letter. Hjort signed the authorization for direct billing. Direct billing for defendant’s charges began on February 8, 2000. Trajkovich sent a letter to defendant indicating the approval of his direct billing request. Among the terms indicated in the letter was that payment was due within 30 days of the statement date.
The first bill sent to Prolific was for $3,877.94 and included room charges plus tax as well as restaurant charges and copying charges. The bill was sent on March 3, 2000, to the address for Prolific that had been provided by defendant. On March 20, 2000, Trajkovich sent out another bill, again mailing it to Prolific. This bill showed the previous balance of $3,877.94, which had remained unpaid, and hew charges totaling $3,106.79, for a total due of $6,984.73. This new grand total covered charges from February 8, 2000, through March 16, 2000, and included charges for the room, tax, restaurant charges, laundry charges, and phone calls. There was a tax credit on the bill because after 30 days of stay, tax was no longer charged by the state. On April 4, 2000, because defendant had failed to pay any of the charges, Trajkovich left defendant a message at the phone number that defendant had provided in his letter. She left a message indicating that there was an outstanding balance and requesting the status of the payment. Defendant did not return the phone call.
On April 14, 2000, Trajkovich mailed to Prolific another billing statement, which stated the current and total charges, and a collection letter, which stated that payment was past due and that prompt payment would be appreciated. The total charges indicated in the statement and letter were through April 9, 2000, and amounted to $10,033.11. The new charges included room charges, restaurant charges, laundry charges, phone calls, and a postage charge. On April 28, 2000, Trajkovich sent another bill and collection letter because she had yet to receive a payment or a response from defendant. She slid this letter under defendant’s hotel room door when she did not receive any рayment or response after she mailed the letter. This letter indicated that over 60 days had passed since the initial bill had been mailed, that $10,033.11 was the previous unpaid balance, and that the current charges amounted to $1,992.81. The total balance amounted to $12,025.92 and covered February 8, 2000, through April 19, 2000. The letter also informed defendant to contact Trajkovich if he needed an explanation of the charges. Once again there were additional charges for incidentals consisting of restaurant charges and laundry charges. No payment or response was made.
Following defendant’s conviction and thе denial of his motion for a new trial, the trial court sentenced defendant to six years in the Illinois Department of Corrections and ordered that he pay restitution to the Embassy Suites. This appeal followed.
II. DISCUSSION
Defendant asserts four contentions on appeal. First, that he was not proven guilty beyond a reasonable doubt, because the evidence was insufficient to establish that he intended to deceive or defraud the Embassy Suites. Second, that the State failed to prove beyond a reasonable doubt that he intended to permanently deprive the Embassy Suites of property. Third, that his trial counsel was ineffeсtive such that a new trial is warranted. Fourth, and finally, that the evidence was insufficient to prove that he stole property worth over $10,000. Because we find that defendant’s fourth contention impacts our analysis with respect to the first three contentions, we will begin our analysis by addressing defendant’s fourth contention. Further, we note that only our analysis of defendant’s fourth contention is contained in the published portion of this opinion and the remainder of our analysis is contained in the unpublished portion.
A. Proof That the Property Stolen Exceeded $10,000 in Value
Defendant contends that the State has failed to prove beyond a reasonable doubt that the property he stole by deception exceeded $10,000 in value. The offense of theft by deception requires that a person “knowingly *** [o]btain[ ] by deception control over property of the owner” and “[i]ntend[ ] to deprive the owner permanently of the use or benefit of the property.” 720 ILCS 5/16—1(a)(2)(A) (West 2000); People v. Kotlarz,
Generally, in reviewing the sufficiency of the evidence to sustain a verdict on appeal, “ ‘the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” (Emphasis in original.) People v. Collins,
Preliminarily, we must address the State’s contention that defendant has waived this issue by failing to raise it in the trial court. Defendant admits that he failed to raise the issue in the trial court but contends that a sufficiency of the evidence argument cannot be waived. The State responds that defendant is raising a sentencing issue and, therefore, waived this issue by failing to object at the sentencing hearing or in a postsentencing motion. We agree with defendant that this issue is one of sufficiency of the evidence and, therefore, can be raised at any time.
Defendant correctly contends that the value of the proрerty was an element of the offense of theft in this case. More specifically, subsection (c) of section 16 — 1 states that “[w]hen a charge of theft of property exceeding a specified value is brought, the value of the property involved is an element of the offense to be resolved by the trier of fact as either exceeding or not exceeding the specified value.” 720 ILCS 5/16 — 1(c) (West 2000). Therefore, there can be no doubt that the value of the property was an element of the offense in this case. Generally, a defendant must both specifically object at trial and raise the issue again in a posttrial motion to preserve any alleged error for review. People v. Enoch,
Turning to the merits of defendant’s contention, we first note that the cardinal rule of statutory construction is to ascertain and give effect to the true intent of the legislature. Ward,
“ ‘[P]roperty’ means anything of value. Property includes real estate, money, commercial instruments, admission or transportation tickets, written instruments representing or еmbodying rights concerning anything of value, labor, or services, or otherwise of value to the owner; things growing on, affixed to, or found on land, or part of or affixed to any building; electricity, gas and water; telecommunications services; birds, animals and fish, which ordinarily are kept in a state of confinement; food and drink; samples, cultures, microorganisms, specimens, records, recordings, documents, blueprints, drawings, maps, and whole or partial copies, descriptions, photographs, computer programs or data, prototypes or models thereof, or any other articles, materials, devices, substances and whole or partial copies, descriptions, photographs, prototypes, or models thereof which constitute, represent, evidence, reflect or record a secret scientific, technical, merchandising, production or management information, design, process, procedure, formula, invention, or improvement.” 720 ILCS 5/15 — 1 (West 2000).
Defendant contends that the right to use the hotel room was not property within the meaning of section 15 — 1. We agree.
In determining the scope of section 15 — 1, we find the court’s decision in People v. Davis,
In further analyzing section 15 — 1, the court next stated that the general term defining property as “anything of value” was followed by specific items. Davis,
In the case of section 15 — 1, the court held that “includes” was used more akin to the latter use described above, that is, to add species to the general class, not to enlarge the general class itself. More specifically, the court held that the specific items listed after “includes” are “an enumeration excluding all other things not in the specific category.” Davis,
The version of section 15 — 1 applicable in Davis is identical to the current statute except, unlike the current statute, it did not list “telecommunications services” as an enumerated type of property. Compare Ill. Rev. Stat. 1981, ch. 38, par. 15 — 1, with 720 ILCS 5/15 — 1 (West 2000). Therefore, the rationale of Davis is still applicable.
Moreover, we believe that the decision of the Davis court manifests the legislature’s intent. In Davis, we believe, the court implicitly recognized that the word “includes” as used in section 15 — 1 was ambiguous. This recognition is evident because the court explicitly noted that the word “includes” has more than one reasonable meaning. “A statute is ambiguous if it is capable of being understood by reasоnably well-informed persons in two or more different ways.” Krohe v. City of Bloomington,
The court recognized that “includes” could be read as indicating that the list provides specific examples of the general term. Davis,
However, the Davis court also recognized that “includes” could be interpreted another way. More specifically, the court recognized that “includes” could indicate that the items following were not in any way connected to the general class but, instead, were additional independent enumеrations of “property.” See Davis,
In order to resolve this ambiguity, the court employed the rule that a statute in derogation of the common law must be strictly construed. Cf. Scott v. Rockford Park District,
We find that this resolution of the ambiguity was the proper one because it limits the expansion of the common-law definition. Further, we believe that the structure of section 15 — 1 also supports this conclusion. More specifically, if the legislature had intended the items following “includes” to simply be an illustrative list of the general class, it could have written “property is anything of value including ....” However, the legislature instead chose to begin a new sentence with the phrase “[p]roperty includes.” We believe that this structure, that is, the beginning of a new sentence, was intended to convey that the items specifically enumerated were in addition to, not part of, the general class.
Our reading finds support in Vargas-Garnica. In that case, the statute at issue read:
“ ‘ “Crime of Violence”—
(I) means an offense under federal, state, or local law that has as an element the use, attempted use, or threatened use of physical force against the person of another; and
(II) includes murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses (including sexual abuse of a minor), robbery, arson, extortion, extortionate extension of credit, and burglary of a dwelling.’ [Citation.]” Vargas-Garnica,332 F.3d at 473 .
The court found that the use of the word “and” coupled with “includes” meant that in order to be a “crime of violence” an offense could satisfy either part I or part II of the statute. Vargas-Garnica,
Further, when the legislature chooses not to amend a statute after judiciаl construction, it is presumed that the legislature has acquiesced in the court’s interpretation of legislative intent. R.D. Masonry, Inc. v. Industrial Comm’n,
Consequently, we apply the definition of “property” as set forth by the court in Davis, that is, that “property” is tangible personal property or anything specifically enumerated in section 15 — I. Under this test, we find that the right to use a hotel room is not tangible personal property and is not listed within the specific enumerated categories of section 15 — 1. Thus, the value of the right to use the hotel room was not рroperty under section 16 — 1.
However, the State contends that defendant did not take the right to use the hotel room but, instead, took the monetary value of the rate agreement for the room. The State’s contention is unavailing. Defendant “took” the right to use the room. The rate agreement was simply an expression of the value of that right and was not what was taken by defendant. Further, the monetary value of the rate agreement is not tangible personal property nor does it fall into one of the specific categories enumerated in section 15 — 1. Therefore, even if defendant had “taken” the monеtary value of the rate agreement as the State suggests, this value would not be considered property for purposes of section 15 — 1 or section 16 — 1.
Defendant contends, and the State does not dispute, that without the value of the right to use the hotel room, the proven value of the property stolen is far less than $10,000. However, defendant admits that the State did prove that the value of the items taken that do fit within section 15 — 1 exceed $300 in value. More specifically, defendant admits that the restaurant charges represent charges for property within the meaning of section 15 — 1 and that the restaurant charges exceed $300 in value. Therefore, defendant requests that we reduce the degree of his conviction from a Class 2 felony to a Class 3 felony and remand for a new sentencing hearing. Subsection (b)(4) of section 16 — 1 states that “theft of property exceeding $300 and not exceeding $10,000 in value, is a Class 3 felony.” 720 ILCS 5/16— 1(b)(4) (West 2000). Further, Supreme Court Rule 615(b)(3) states that on review we may “reduce the degree of the offense of which the appellant was convicted.” 134 Ill. 2d R. 615(b)(3).
We find People v. Williams,
This case is similar to Williams. The State failed to prove that the value of the property stolen exceeded $10,000 but succeeded in proving a lesser value. This is akin to the State’s failure in Williams to prove that the amount possessed was more than 100 grams but less than 400 grams but, instead, proved a lesser amount. Thus, we find that Williams and Rule 615(b)(3) give us authority to reduce the degree of defendant’s conviction from a Class 2 felony to a Class 3 felony and we choose to exercise this power.
However, before we remand for resentencing, we must determine whether defendant’s remaining contentions requesting reversal or, in the alternative, a new trial, have merit. Because we have decided that the only “property” that defendant took was the incidentals and not the right to use the hotel room itself, we consider defendant’s remaining contentions only as they relate to such incidentals.
B. Defendant’s Intent to Deceive or Defraud The material in sections II B through II D is nonpublishable under Supreme Court Rule 23 (166 Ill. 2d R. 23).
III. Conclusion
For the foregoing reasons, we affirm defendant’s conviction as modified, reducing his conviction to a Class 3 felony, and we remand the cause for a new sentencing hearing.
Affirmed as modified and remanded.
BOWMAN and GILLERAN JOHNSON, JJ., concur.