People v. Elcock

• Decision Date: 20 November 2009
• Docket Number: No. 2-07-1273.,2-07-1273.
• Citation: 919 N.E.2d 984
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Germaine Aretha Albertha ELCOCK, a/k/a Yvette Michelle Williams, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

919 N.E.2d 984

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Germaine Aretha Albertha ELCOCK, a/k/a Yvette Michelle Williams, Defendant-Appellant.

No. 2-07-1273.

Appellate Court of Illinois, Second District.

November 20, 2009.

Thomas A. Lilien, Deputy Defender, Office of State Appellate Defender, Jaime L. Montgomery, Office of State Appellate Defender, Elgin, IL, for Appellant.

Michael J. Waller, Lake County State's Attorney, Waukegan, IL, Robert J. Biderman, State's Attorneys Appellate Prosecutor, Anastacia R. Brooks, State's Attorneys Appellate Prosecutor, Springfield, IL, for Appellee.

Justice BOWMAN delivered the opinion of the court:

Following a jury trial, defendant, Germaine Aretha Albertha Elcock, a/k/a Yvette Michelle Williams,¹ was convicted of aggravated identity theft of over $100,000 (720 ILCS 5/16G-20 (West 2006)), theft of over $100,000 (720 ILCS 5/16-1(a)(1) (West 2006)), and wire fraud (720 ILCS 5/17-24(a) (West 2006)). The trial court found that the latter convictions merged into the aggravated identity theft conviction, and it sentenced defendant to 18 years' imprisonment. On appeal, defendant argues that: (1) her convictions of aggravated identify theft and theft of over $100,000 must be vacated because the victims did not have a common interest in the money; (2) her conviction of aggravated identity theft of over $100,000 must also be vacated because Illinois law does not provide for the aggregation of multiple acts of identity theft; (3) the cause must be remanded to set a schedule for the payment of restitution; and (4) the trial court improperly ordered defendant to pay fines and costs not authorized by statute. We affirm in part, reverse in part, and vacate in part and remand the cause.

I. BACKGROUND

Defendant was charged by a seven-count information in April 2007. All counts related to the period between October 1 and December 31, 2006. Count I charged defendant with aggravated identity theft of over $100,000 (720 ILCS 5/16G-20 (West 2006)), "in that in a series of acts in furtherance of a single intention and design, [she] knowingly used the personal identifying information of Janet Stein and Charlotte Weidman, being their names, to fraudulently obtain $116,053.37 in the names of" Stein and Weidman. Count I also alleged that Stein and Weidman were over 60 years old. Count II charged defendant with aggravated identity theft of between $10,000 and $100,000 (720 ILCS 5/16G-20 (West 2006)) for using Stein's name to fraudulently obtain $45,000. Count III charged defendant with aggravated identity theft of between $10,000 and $100,000 for using Stein's social security number to fraudulently obtain $45,000. Count IV charged defendant with aggravated identity theft of between $10,000 and $100,000 for using Weidman's name to fraudulently obtain $71,053.37 credit. Count V charged defendant with aggravated identity theft of between $10,000 and $100,000 for using Weidman's social security number to fraudulently obtain $71,053.37 credit. Count VI charged defendant with theft of over $100,000 (720 ILCS 5/16-(a)(1) (West 2006)) in that she, "in a series of acts in furtherance of a single intention and design, knowingly exerted unauthorized control over the property of Janet Stein and Charlotte Wiedman [sic], being United States Currency having a total value in excess of $100,000," intending to permanently deprive them of the money. Count VII charged defendant with wire fraud (720 ILCS 5/17-24(a) (West 2006)) for using electronic impulses received by a person in Illinois in furtherance of a scheme to obtain money through false representations.

On August 17, 2007, defendant filed motions to suppress statements and other evidence. Following a hearing, the trial court denied the motions on August 24, 2007.

Defendant's trial took place from October 10, 2007, to October 12, 2007. Stein testified as follows. She was 74 years old and retired. She lived at 830 Audobon Way in Lincolnshire but spent about five months out of the year in Florida. In November 2006, when she was in Florida, she received two unusual phone calls: one from a woman claiming to be from AT & T, her telephone service provider in Illinois, and one from a woman claiming to be from the United States Treasury Department. In response to the first call, Stein told the woman that she did not understand why she was calling. In response to the second call, Stein provided her driver's license number and confirmed that her daughter's name was Cindy Miller and that she was getting social security checks for a specific amount. On November 15, 2006, she received a call from a woman claiming to be from American Airlines. Stein was scheduled to fly to Illinois on November 19. Following the phone call, Stein called the airlines three times. The first time, her reservation was fine; the second time, she learned that it had been changed; and the third time, she learned that her reservation had been cancelled. Stein had never changed or cancelled her flight.

After finding out that someone had cancelled her flight, Stein asked her daughter to check on her checking and savings accounts with J.P. Morgan Chase (Chase), which were also in her daughter's name. Stein learned that money was missing, so she closed the accounts when she returned to Illinois. Stein never had an account with Fidelity Investments. She did not authorize three transfers of $15,000 from her Chase accounts to an account with Fidelity. Stein did not use the Internet for online banking, and she had never been to Fayetteville, North Carolina. She was not the person in photographs taken by ATM surveillance cameras in Fayetteville, and the signature on a Chili's receipt was not hers. She also never requested any Green Dot debit or credit cards, but she received two in the mail at her Lincolnshire address, one in her name and the other with the name Belinda French. Stein did not know anyone named Belinda French. Stein agreed that her Chase account was eventually credited back with the amount of the missing money.

Weidman provided the following testimony. She was 81 years old and retired. From October to December 2006, she was living in an apartment in a retirement community at 830 Audobon in Lincolnshire. On November 13, 2006, she received an unusual phone call from a woman saying she was from the "office of the bureau of highway license." The woman called a second time in a matter of minutes. In response to the conversation, Weidman said that she was going to call the Secretary of State's office to make sure that her driver's license was valid. Also, Weidman normally received mail on a daily basis, but she did not receive any mail on November 15 or 16 despite the fact that she had not put a hold on her mail.

On December 12, 2006, Weidman received a Green Dot debit card in the mail with her name on it. She had never requested the card, so she called and cancelled it. The same day, she received a call from Glen Tierney of Fidelity Investments. Weidman had a mutual fund account with Fidelity. In October and November 2006, she had a balance of about $70,000. She did not open any new accounts through Fidelity, ask Fidelity to change her e-mail or mailing address, or give anyone permission to access her account. Weidman also did not do any online banking. Weidman was able to withdraw all of the money in her Fidelity account and did not suffer any financial loss.

Glen Tierney provided the following testimony. He investigated financial crimes committed by or against accounts for Fidelity Investments. On November 21, 2006, he was assigned to investigate a complaint made by Stein that a Fidelity brokerage account was established without her authorization. Tierney determined that the account was set up on the Internet on October 19, 2006. On October 31, 2006, the legal address on the account was changed from 830 Audobon Way in Lincolnshire to 856 Orange Street in Fayetteville. Three transfers of $15,000 each were electronically made to the account from a Chase account in November 2006. A "gold check card" was issued to the account on November 7, 2006. Between November 17 and November 21, 2006, the card was used in and around Fayetteville at ATMs, a Chili's restaurant, a Wal-Mart, and post offices. In total, $28,408.19 was withdrawn from the Fidelity account in Stein's name.

Tierney further determined that the same computer used to access Stein's account had accessed Weidman's account. Weidman had a preexisting mutual fund account with Fidelity with about $71,000 in it, but a second, brokerage account had been opened in her name. The brokerage account did not have any money in it or transactions associated with it, and Tierney put a restriction on Weidman's mutual fund account to prevent the disbursement of funds until Weidman was contacted. Tierney explained that the person who had opened the brokerage account would have also been able to access the mutual fund account.

David Oakley, a United States postal inspector, testified that he inspected crimes using the post office or against the post office. His territory was the southeastern part of North Carolina. Oakley became involved in this investigation in December 2006 after he learned about a possible identity theft and contacted Tierney of Fidelity Investments. Oakley discovered that a debit card account had been opened up in the victim's name and used throughout the Fayetteville area in certain transactions, including at a Wal-Mart and a Chili's restaurant. Oakley was able to obtain the original Chili's receipt, and it had the name "J. Stein" on it. The debit card had also been used to purchase money orders at five post offices in and around Fayetteville. Oakley explained that money orders of less than $3,000 do not require identification, but the buyer must list his name and address. The money orders at issue here had the name of Belinda French as the buyer, but they had different addresses listed. Some of the...