People v. Bochenek

2020 IL App (2d) 170545

149 N.E.3d 244

439 Ill.Dec. 902

The PEOPLE of the State of Illinois, Plaintiff-appellee,

v.Dominik K. BOCHENEK, Defendant-appellant.

No. 2-17-0545

Appellate Court of Illinois, Second District.

Opinion filed February 19, 2020

James E. Chadd, Thomas A. Lilien, Yasemin Eken, and Bryan G. Lesser, of State Appellate Defender's Office, of Elgin, for appellant.

Robert B. Berlin, State's Attorney, of Wheaton (Lisa Anne Hoffman, Assistant State's Attorney, of counsel, and Richard Green, law student), for the People.

PRESIDING JUSTICE BIRKETT delivered the judgment of the court, with opinion.

¶ 1 Following a six-person jury trial in the circuit court of Du Page County, defendant, Dominik K. Bochenek, was convicted of a single count of identity theft not exceeding $300 ( 720 ILCS 5/16-30(a)(1) (West 2014)) for the unauthorized use of Anthony Fatigato's credit card to buy cigarettes at a gas station in Palatine, Illinois. Defendant was sentenced to a 30-day term of periodic imprisonment and a 30-month term of probation. On appeal, defendant challenges as unconstitutional the venue provision pertaining to identity theft (id. § 1-6(t)), allowing proper venue in the county in which the victim resides. Defendant also argues that the record does not show that he knowingly waived his right to a 12-person jury trial and that the trial court abused its discretion in allowing the State to present excessive and unduly prejudicial other-crimes evidence. We affirm.

¶ 2 I. BACKGROUND

¶ 3 We summarize the facts elicited at trial and appearing in the record on appeal. On April 26, 2016, defendant was indicted with one count of identity theft and one count of unauthorized use of an unissued credit card (id. § 17-36(ii)) stemming from defendant's June 17 to 18, 2015, late night and early morning use of Fatigato's Chase Bank and U.S. Bank credit cards to buy cigarettes at gas stations in Itasca and Palatine, Illinois. Defendant never challenged that it was he who used Fatigato's credit cards; rather, defendant always maintained that he believed that he was authorized to use the cards because he was given them by his girlfriend, Alexi Kern, and therefore he lacked the requisite intent.

¶ 4 Before trial, the State moved in limine to admit other-crimes evidence for the purpose of proving defendant's intent, plan, identity, and absence of mistake. Specifically, the State sought to introduce evidence of two other incidents of defendant's unauthorized purchase of cigarettes at gas stations, one on May 17, 2015, and the other on the day before the instant offense, on June 17, 2015. The State sought to introduce evidence that, on each date, defendant used credit cards that belonged to others and were taken from the owners' vehicles the night or early morning of the incident shortly before the purchases. In addition, the evidence would show that defendant used the same black vehicle, wore the same black hoodie, and was accompanied by Kern on each of the other nights. The trial court balanced the relevance and the prejudicial effect of the proposed evidence, noting that any evidence offered by the State had some prejudicial effect to the defense but also realizing that the proper question was whether the evidence was unduly prejudicial. The trial court observed that, across the charged offense and the other-crimes incidents, the same vehicle was used, the events happened within a brief period, defendant was accompanied by Kern, and defendant purchased cigarettes with credit cards not in his name. The trial court allowed the motion to admit the evidence for the purposes of plan, identity, lack of mistake, motive, and modus operandi .

¶ 5 Later, defendant filed a motion to dismiss the charges on the ground that venue was improper in Du Page County. The motion was heard the day the trial was scheduled to begin. Defendant argued that the offense occurred in Lake County, so the venue provision pertaining to identity theft was unconstitutional because it conflicted with the Illinois Constitution's guarantee that a defendant would be tried in the county in which the offense was committed. The trial court denied defendant's motion to dismiss, reasoning that the identity-theft statute, in describing the locales where the crime was committed, included the residence of the victim.

¶ 6 Immediately before the hearing on defendant's motion to dismiss, defendant's counsel informed the trial court that defendant preferred a six-person jury. Defense counsel stated that he "already spoke to [his] client" about the six-person jury. Following the decision on defendant's motion to dismiss, the trial court revisited the composition-of-the-jury issue, asking defendant's counsel if he had discussed the decision to proceed with a six-person jury with defendant. Counsel replied that he had. The court then asked defendant if it was his choice to utilize a six-person jury, and defendant affirmed that it was. When the potential jurors arrived, the trial court stated:

"this will be a selection of a jury of six. I know most of you are probably accustomed to twelve. If you've seen Twelve Angry Men, you know it's twelve. It used to be men, too; that's another thing we changed. But in this instance it will be a jury of six and we will select one alternate."

¶ 7 The matter proceeded to trial. Fatigato testified that he lived in Itasca, Du Page County, Illinois. On June 17, 2015, he parked his car in his driveway, accidentally leaving his wallet in the car. Fatigato explained that he had begun taking his wallet out of his pocket when he drove because it was uncomfortable to sit on, so he would place it on the front seat and take it with him once he exited the car. On June 17, he left the wallet on the front seat. When he woke up the next morning he realized his wallet was not in the house. Fatigato checked his car and discovered that his wallet, with a Chase Bank credit card and a U.S. Bank debit card, was missing.

¶ 8 Fatigato called the credit card companies to cancel the missing cards. He learned that, during the early morning hours of June 18, 2015, the cards had been used at gas stations. Fatigato's U.S. Bank card (the basis for the charge of using an unissued card) had been used at a gas station in Itasca, and his Chase Bank card (the basis for the identity theft charge) had been used at a gas station in Palatine (located in Lake County, Illinois). Fatigato testified that, on June 18, 2015, he had not made any purchases at either gas station. Fatigato testified that he had not authorized anyone to use his credit cards. Fatigato examined a copy of the receipt of the transaction at the Palatine gas station. The receipt bore what purported to be Fatigato's signature. Fatigato testified that he had not written the signature. Ultimately, Fatigato successfully got the June 18 charges on each card reversed.

¶ 9 Abid Hussein testified that he was the manager of the Palatine gas station. Hussein testified that he maintained a video surveillance system and was trained in its use. Hussein testified that, on June 17 to 18, 2015, the system was properly functioning.

¶ 10 Detective Tiffany Wayda, a detective with the Du Page County Sheriff's Office, testified that she investigated the theft of Fatigato's credit cards. Wayda testified that she reviewed the recording of the video surveillance systems of both the Palatine and the Itasca gas stations. Wayda testified that, the Itasca recording showed a black car arriving at the gas station, and the driver went inside and made a purchase. Wayda could not identify the driver of the black car from the footage she reviewed.

¶ 11 Wayda testified that, the Palatine recording showed a black Toyota car arriving at the gas station, and a white male from the car entered the gas station and purchased cigarettes. The man signed the credit card receipt and left the gas station in the black car. Wayda could discern the license plate number and discovered that the car was registered to Barbara Bochenek, defendant's mother. Wayda testified that, when she compared photos of defendant to the video from the Palatine gas station, she concluded that the man seen on the footage was defendant, whom she identified in open court.

¶ 12 The State then presented its other-crimes evidence. The trial court instructed the jury that the other-crimes evidence could be used for the limited purposes of identification, intent, plan, and absence of mistake. Ivette Garza testified that, on May 17, 2015, her Discover credit card was used at the same gas station where Fatigato's U.S. Bank credit card had been used. Sometime during the night of his wedding, May 17 or 18, 2015, the card was taken from her mother's car outside the wedding venue. The card was used on May 17 between 11 p.m. and midnight. Garza testified that she did not make the purchases and did not authorize or permit anyone to make the purchases. Garza did not know defendant.

¶ 13 Andrew Wagner, the manager of the Itasca gas station, testified that he was responsible for the video surveillance equipment at that location. Wagner testified that, the recording made on May 17, 2015, showed that, at 11:14 p.m., defendant purchased two cartons of cigarettes. In the recording, defendant is wearing a gray hoodie. Defendant purchased the cigarettes using Garza's Discover card. Wagner gave the police a copy of the recording.

¶ 14 Detective Chris Banaszynski of the Wood Dale Police Department testified that, as part of his investigation of the theft and use of Garza's Discover card, he viewed the copy of the surveillance footage from the Itasca gas station. He reached out to other departments and received a photograph of a person wearing a 2013 Rolling Meadows High School graduation T-shirt. Banaszynski testified that he reviewed the school's yearbook from 2013 and ultimately identified defendant as the person who used Garza's card in the gas station. He also identified defendant in open court. Banaszynski testified that,...