Gutierrez trial: St. Charles businessman not guilty on all counts

Kane County Circuit Judge John Barsanti ruled on Tuesday that the state did not meet its burden of proof and found a St. Charles businessman not guilty on all felony counts – seven alleging theft and two alleging kickbacks.

It was the second day of a bench trial for Robert Gutierrez, 75, who was charged in 2023 with more than $100,000 in theft by deception and paying illegal kickbacks to the late and former Circuit Clerk Thomas Hartwell.

Seven witnesses testified for more than six hours on Monday.

Gutierrez’s attorney Liam Dixon asked the judge for a directed finding – in Illinois law, that means the attorney asks for a judgment or verdict in the defendant’s favor.

Dixon argued that the state did not meet its burden of proof that Gutierrez did not perform the promotions work that Hartwell paid him for, and that the so-called $15,000 in kickbacks were a loan from a friend, that was paid back.

Assistant State’s Attorney Robert Dore countered, saying the last three invoices totaling $44,775, allegedly for COVID-19 relief public relations, were not based on doing any outreach or publicity.

One for $29,875 dated Nov. 9 was just under the limit of $30,000, which would have required County Board action, Dore said.

“You heard testimony from (State Police) Investigator (Nathan) Schramka that he was not aware of any – any – event related to COIVD outreach in November or September or October,” Dore said.

Barsanti took three and a half hours before reconvening the court to give his decision.

“What I find, based on the evidence involved that was presented in this manner, I am granting the defense motion for a directed verdict on all counts,” Barsanti said.

Barsanti said he reviewed the statute and case law on the charge of “theft by deception.”

“A person commits theft by deception by knowingly obtains by deception control over property of the owner,” Barsanti said.

“Illinois courts have held that to sustain a conviction of theft by deception, the state must prove beyond a reasonable doubt that, one: The victim was induced to part with money; two: The transfer of money was based upon deception; three: The defendant intended to permanently deprive the victim of money; and four, The defendant acted with specific intent to defraud the victim,” Barsanti said.

As to the allegation that Gutierrez’s invoices were so excessive that they led to the investigation, and then the charges, Barsanti said the law does not state anything about excessive fees.

Witnesses testified that fees paid to Gutierrez Productions and DAR Illumination, eventually totaling more than $100,000, were “excessive” for marketing and promotion work that was done for Hartwell.

“I have no evidence to show it was excessive,” Barsanti said. “It sounds excessive. I’ll tell you that. But I have no evidence that that’s excessive.”

As to the prosecution’s evidence that Gutierrez did not do the work as listed on his invoices, Barsanti said witnesses testified that they saw him at the various events.

As to whether there were sufficient publicity notices on social media and in the newspapers, some witnesses said they produced the notices themselves; the state police investigator testified he didn’t find any.

“It was the state’s burden to prove all of this,” Barsanti said.

Gutierrez and his wife Lucy, said they were relieved to be done with the stress of the charges and the trial.

As to whether they were going to celebrate, “We’re going to kind of chill and not come back to court any more,” Lucy Gutierrez said.

Dixon said he appreciated that Barsanti took the time to review all the evidence “and that he saw what we did, there there was no proof he committed these crimes.”

“I’m also grateful that Mr. Gutierrez does not have to suffer through any more of these procedures,” Dixon said.