People v. Bailey, 1–09–1020.

• Decision Date: 23 May 2011
• Docket Number: No. 1–09–1020.,1–09–1020.
• Citation: 350 Ill.Dec. 410,948 N.E.2d 690,409 Ill.App.3d 574
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee,v.Karen BAILEY, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

409 Ill.App.3d 574

948 N.E.2d 690

350 Ill.Dec. 410

The PEOPLE of the State of Illinois, Plaintiff–Appellee,

v.Karen BAILEY, Defendant–Appellant.

No. 1–09–1020.

Appellate Court of Illinois, First District, Second Division.

April 26, 2011.Rehearing Denied May 23, 2011.

Michael J. Pelletier, State Appellate Defender, Office of the State Appellate Defender, Chicago, IL (Patricia Unsinn, Adrienne River, of counsel), for Appellant.Anita Alvarez, State's Attorney, County of Cook, Chicago, IL (Alan J. Spellberg, Douglas P. Harvath, Sheilah C. O'Grady, of counsel), for Appellee.

[350 Ill.Dec. 415 , 409 Ill.App.3d 575] OPINION

Justice HARRIS delivered the judgment of the court, with opinion.

On January 27, 2009, the trial court found defendant guilty of four counts of financial exploitation of an elderly person and two counts of theft. The evidence showed that in less than one year, defendant had taken and depleted the life savings—over $300,000—from a woman who suffered from dementia severe enough that she was not able to understand and manage her financial affairs. That included several bank accounts and monthly railroad

[350 Ill.Dec. 416 , 948 N.E.2d 696]

retirement pension deposits. In perpetrating her crimes, the defendant used two dubious documents, a general power of attorney that had terminated due to the incompetence of the principal and a durable power of attorney. After finding defendant guilty, the trial court sentenced her to concurrent sentences of 11 years' incarceration in the Illinois Department of Corrections. Defendant then appealed to this court, raising six issues on appeal. First, defendant argues that the trial court erroneously sustained certain hearsay objections during the testimony of the defense's sole witness. Second, defendant argues that the trial court mischaracterized significant portions of the evidence presented at trial. Third, defendant maintains that the State failed to prove beyond a reasonable doubt either that the victim was incapable of authorizing defendant's various uses of the victim's money or that defendant had notice that her power of attorney had been terminated. Fourth, defendant argues that her sentencing was improper because the trial court considered two improper factors in aggravation. Fifth, defendant also argues that her sentences are excessive. Finally, defendant argues that all but one of her convictions should be vacated pursuant to the one-act, one-crime doctrine. For the following reasons, we affirm.

JURISDICTION

The circuit court sentenced defendant on April 9, 2009. Defendant timely filed her notice of appeal on April 13, 2009. Accordingly, this court has jurisdiction pursuant to article VI, section 6, of the Illinois Constitution and Illinois Supreme Court Rules 603 and 606, which govern appeals from a final judgment of conviction in a criminal case entered below. Ill. Const.1970, art. VI, § 6; Ill. S.Ct. R. 603 (eff. July 1, 1971); R. 606 (eff. March 20, 2009).

BACKGROUND

The victim in this case, Mary Ann Wilson, is an octogenarian, who has been diagnosed with dementia and is currently living in a nursing home. She had been living with her husband, Charles Wilson, at their home on the south side of Chicago until his death in 1993. She remained in the home following her husband's death until 2006 when she entered a nursing home. During the period before entering the nursing home, she had lived frugally and amassed savings of over $300,000 in her various bank and investment accounts. But beginning in 2005, defendant acquired wrongful control over the victim's finances and drained her life savings.

A grand jury indicted defendant on four counts of financial exploitation of an elderly person (720 ILCS 5/16–1.3(a) (West 2008)) and eight counts of theft (four counts pursuant to section 16–1(a)(1) of the Criminal Code of 1961 (720 ILCS 5/16–1(a)(1) (West 2008)) and four counts pursuant to section 16–1(a)(2) (720 ILCS 5/16–1(a)(2) (West 2008))). The State proceeded against defendant on counts I through VIII and nol-prossed counts IX through XII. Defendant waived her right to a jury trial and the State proceeded by way of a bench trial beginning on January 5, 2009. The following evidence was presented at trial.

The State called Dr. Dominic Gaziano, who testified as an expert witness in internal medicine, with a specialty in geriatric medicine. Dr. Gaziano saw the victim when she was admitted to St. Mary of Nazareth Hospital on May 3, 2006. When she was admitted, the victim presented with dementia, Parkinson's disease-like symptoms, a urinary tract infection, and dysphasia. Dr. Gaziano testified that on that date, the victim was suffering from severe dementia such that she could not make routine day- to-day decisions. He further testified that after reviewing the victim's medical records, including various diagnostic scans taken as far back as 2002, in his opinion the victim was suffering from dementia when she was hospitalized in May 2004. The sort of dementia from which the victim suffered—vascular dementia—was a type that progressed slowly over time; it did not come on suddenly. On direct examination, Dr. Gaziano testified as follows:

“Q. Could you consider a person who has any type of dementia to be competent to make decisions, such as granting a person control over all of their financial transactions?

A. No, I would not suspect so.”

Dr. Gaziano reiterated this opinion on redirect examination:

“Q. If someone is diagnosed, again I am sorry if I am being repetitive, if someone is diagnosed with dementia, whether severe or just a general diagnosis of dementia, Doctor, you stated it's your opinion within a reasonable degree of medical certainty that that person is not capable of making financial decisions for themselves?

A. Yes.”

Following Dr. Gaziano's testimony, the State entered three agreed stipulations into evidence. First, the victim, Mary Ann Wilson was born on April 16, 1920, and at the time of trial resided at a nursing home in Chicago. Second, records made by AOL in the regular course of business identified a certain e-mail address and account as belonging to defendant. Third, the State entered into evidence a genuine copy of a durable power of attorney dated January 16, 2004, presented by defendant by way of motion and sworn affidavit, and filed June 7, 2006, in support of her position in probate case number 06 P 3549; a genuine copy of Mary Ann Wilson's last will and testament dated January 16, 2004; a genuine copy of an advanced healthcare directive dated January 16, 2004; and a genuine copy of general power of attorney dated January 15, 2004.

Michael Kenney, the owner of legacywriter.com, a web-site that sells legal documents, testified next for the State. Kenney identified the various documents previously stipulated to by the parties and entered into evidence—the durable financial power of attorney, healthcare power of attorney, last will and testament, and advanced healthcare directive—as documents ordered from his web-site by someone using defendant's e-mail address. Kenney further testified that his company received two e-mails from defendant's e-mail address requesting assistance in completing her purchase of the documents. Those e-mails were sent on the morning of April 20, 2006. The account associated with defendant's e-mail address was created in February 2006. In addition, Kenney testified that the durable power of attorney form signed and dated in January 2004 was not available for purchase until August 2004. The advanced healthcare directive was not available until June 2004, and the healthcare power of attorney form was not available for purchase until April 2005.

Following Kenney's testimony, the State entered several agreed stipulations regarding the amount of money contained in Mary Ann Wilson's various bank accounts. As of August 1, 2005, she had over $291,000 in three separate bank accounts. She had an investment account at UBS Financial Services, with a balance of over $185,000. She also had over $79,000 in a checking account and over $26,000 in a money market account at LaSalle National Bank. Prior to June 9, 2005, she was living off of her railroad retirement checks and barely withdrew any funds from her three

[350 Ill.Dec. 418 , 948 N.E.2d 698]

accounts. Instead, the balances in those accounts increased as she deposited United States Treasury retirement checks. As of April 20, 2006, just over $4,000 remained in Wilson's three accounts.

Arnetta Williams, Mary Ann Wilson's cousin, testified next for the State. Williams was appointed Wilson's temporary guardian on May 15, 2006, and was later appointed Wilson's legal guardian in July 2006. The two women became acquainted during the 1980s and formed a friendship through the 1990s. Sometime during 2004 and 2005—Williams could not testify as to the exact date—Williams became worried about Wilson's well-being. Williams testified that she first became concerned during a telephone conversation with Wilson in which Wilson was incoherent and barely able to communicate. Williams telephoned Wilson repeatedly after that but Wilson did not answer the phone. Instead, Clifford Service, whom Williams believed to be Wilson's friend, answered the phone and would offer various excuses as to why Wilson could not come to the phone at that time. During one telephone call in March 2004, Williams became alarmed when Clifford told her that Wilson could not come to the telephone because she had been hospitalized. In April 2006, when Williams telephoned and was told that Wilson was asleep, she demanded that Clifford wake Wilson up and put her on the phone. Williams testified that when Wilson came to the phone, all Williams could hear was moans.

That same month, Williams traveled to Wilson's home to ascertain her condition in person. Wilson's home was dark and “totally smelling.” Wilson lay stiff on her bed, flat on her back, covered in urine and feces. She could move her head from...