People v. Fontana

• Decision Date: 29 October 1993
• Docket Number: No. 2-91-1402,2-91-1402
• Citation: 190 Ill.Dec. 863,251 Ill.App.3d 694,622 N.E.2d 893
• Parties: , 190 Ill.Dec. 863 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Daniel FONTANA, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 893

622 N.E.2d 893

251 Ill.App.3d 694, 190 Ill.Dec. 863

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Daniel FONTANA, Defendant-Appellant.

No. 2-91-1402.

Appellate Court of Illinois,

Second District.

Oct. 29, 1993.

G. Joseph Weller, Deputy Defender and Ingrid L. Moller, Office of the State Appellate Defender, Elgin, for Daniel Fontana.

James E. Ryan, DuPage County State's Atty., William L. Browers, Deputy Director, State's Attys. Appellate Prosecutor, and Thomas F. Baker, Kukla & Curran, Huntley, for the People.

Justice DOYLE delivered the opinion of the court:

A jury found defendant, Daniel Fontana, guilty of the unlawful use of a credit card (Ill.Rev.Stat.1991, ch. 17, par. 5921 (now 720 ILCS 250/8 (West 1992))). The trial court sentenced defendant to 30 months' probation, 30 days' in the county jail, restitution of $11,208.44, and costs. Defendant timely appealed, and he raises four issues for review: (1) whether the trial court erred in admitting evidence of other transactions by defendant and, if not, whether the lack of a limiting instruction for this evidence amounted to reversible error; (2) whether the trial court erred in sustaining the State's objections to defense counsel's questions regarding defendant's mental capacity; (3) whether the restitution included sums extraneous to the offenses, and whether the trial court erred in failing to determine the manner in which defendant was to pay the restitution; and (4) whether the victim's assistance fine of $20 imposed by the circuit court clerk must be vacated.

Defendant was charged with the unlawful use of a credit card based on two transactions: on December 15, 1990, defendant was alleged to have used the Visa credit card of Angeline Fontana for the purpose of obtaining the services of Dunn Rite Car and Truck Rental in the amount of $286.94; and on December 20, 1990, defendant was alleged to have used the Visa credit card of Anthony Fontana for the purpose of obtaining $100 cash from the Heritage Bank of Woodridge.

At trial, defendant's grandmother, Angeline Fontana, testified that she lived in North Riverside. On December 14, 1990, her husband Anthony died. Angeline had been at the hospital several days before Anthony's death. She kept her Visa and Mastercard credit cards in a buffet in her dining room, because she seldom used those credit cards. Anthony kept his credit card in his wallet. Defendant's father had a key to Angeline and Anthony's home. Angeline did not give defendant permission to use or take the credit cards, and she was unaware that they were missing until she was contacted by the Harris Trust & Savings Bank (Harris Bank), the issuer. She never requested a new credit card or a change of address. On cross-examination, defense counsel asked Angeline if defendant had learning disabilities and what were defendant's mental capabilities. The State objected to both questions, and the court sustained the objections.

James Harding, an employee of Dunn Rite Car & Truck Rental (Dunn Rite), testified that on December 15, 1990, defendant rented a car from Dunn Rite. Harding asked for a credit card and a driver's license to rent the vehicle. Defendant produced his driver's license and gave his name. Defendant used a Visa card with the name "Angeline Fontana" on it to pay $286.94 for the rental. He signed the credit slip "Dan and F something."

Ann Marie Wilson, an employee of Heritage Bank, was in charge of bookkeeping and records in December 1990. She identified records of cash disbursements from a credit card. One was made on December 12, 1990, for $100, and Anthony's Visa card was used. The other transaction was on December 7. The jury was shown videotapes made by the bank's surveillance camera on December 7 and 20, 1990.

Detective Mitchell Vandenbos, of the Downers Grove police department, interviewed defendant on January 30, 1991, about defendant's use of his grandparents' credit cards. Vandenbos went through a copy of a Visa billing statement item by item, asking defendant to acknowledge which purchases he made. Vandenbos testified that defendant admitted to the Dunn Rite transaction. Defendant told Vandenbos that he rented a car because his was being repaired. When Vandenbos asked defendant if he had permission to use the credit cards, defendant admitted that he did not. Defendant also admitted that he took both credit cards from his grandparents' home. On cross-examination, defense counsel asked Vandenbos to describe defendant's mental capabilities, and the court sustained the State's objection to the question.

On January 3, 1991, defendant was interviewed at the Woodridge police department by Commander Edward Kelter and Detective William Sperling, in the presence of two Harris Bank employees. Defendant told the officers that he took the credit cards on December 3, 1990. Defendant admitted that he made the purchases listed on the billing statements provided by Harris Bank and that he did not have authority to use the credit cards. Defendant told the officers that he requested a new credit card from the issuer and he had it mailed to a post office box in Oak Brook around December 20. Defendant admitted that he made the $1,000 transaction on December 7, 1990, without permission, and that he made the $100 transaction on December 20, 1990, to see if that card "would work." Defendant gave the officers two of the credit cards immediately, a Mastercard with Angeline's name on it and a Visa with Anthony's name on it. Defendant returned later with another credit card. Defendant made a written statement in the form of a letter of apology to Harris Bank, which stated:

"I just wanted to say I was sorry for ussing [sic ] my grandmother's credit cards and charging so much money on her acct. [sic ] and making Harris bank go through all this stuff. When I see a credit card I just go crazzy [sic ] with it not thinking what I'm doing. Also somehow I'll try to pay this back to Harris bank."

According to Commander Kelter, the officers offered defendant the "opportunity to make a written statement or a letter of apology or any other format in writing that he wanted to in his own words to explain what occurred." Kelter testified that he could not recall who initiated the request nor could he recall whose idea it was to make the statement a letter of apology to Harris Bank. Kelter denied that it was his idea to make it an apology or that he directed defendant what to write. Again, on cross-examination, defense counsel attempted to question Kelter about defendant's mental capabilities, and the court sustained the State's objections.

After Kelter's testimony, during a side-bar discussion, the prosecutor mentioned some business records in the form of billing statements that the State intended to introduce. Defendant objected to the introduction of the billing statements because they contained other matters which were not the subject of the charges at issue. The prosecutor responded that the billing statements were relevant because Vandenbos and Kelter testified that they went through the documents with defendant and he indicated that he did not have authority to make several of the charges. Defense counsel then admitted that there was no issue of authorization or permission to use the cards, but the issue was whether defendant had the intent to defraud. Defense counsel was concerned that the billing statements were duplicative. The court then explained:

"You started off talking about intent to defraud and then you are talking about duplicative evidence. It is discretionary with the Court to allow something additional to what has been already offered, and I don't see a problem there.

The other, more serious problem is the question of proof of other crime, and the question of intent is the issue to be decided in the case, intent to defraud. And there had been testimony that there was no authority given by Mrs. Fontana, the grandmother, to the defendant to use the credit card.

And where the defendant denied any intent to defraud, I think evidence of other use of the card and other purchases with the use of that card without having been given permission by the cardholder to do so is probative on the issue on the intent to defraud."

The court allowed the State to introduce the billing statements into evidence.

Detective Sperling's testimony was essentially the same as Kelter's testimony. When the prosecutor asked Sperling if the police questioned defendant about a transaction for an engagement ring, defendant objected on the basis of an insufficient foundation. Sperling was allowed to testify that defendant stated that he used the credit card to purchase a wedding ring set from a jeweler in Schaumburg. Defendant gave the ring set to his fiancee. On January 7, 1991, defendant returned to the police station and gave Sperling the wedding band, but the fiancee refused to return the engagement ring. Sperling identified a photograph he took of the wedding band that defendant brought to the police station.

Sperling further testified that Kelter gave defendant a pad of paper and a pen and requested that defendant make a statement. On cross-examination, Sperling stated that it was Kelter who chose to direct the letter to Harris Bank and that Kelter stated that it was a letter of apology. As with the questioning of the other witnesses, the court sustained the State's objection to defense counsel's question about defendant's mental capabilities.

Larry Herrmann, a senior bank card agent for Harris Bank, testified that on December 13, 1990, the Fontanas' Visa card was reported stolen. Harris Bank closed the account that day and issued a new card with a new account number. According to Herrmann, normally it takes three days for Harris Bank to send a new card after a card is reported stolen. The new Visa card was sent to an address in Oak Brook on December 17.

Herrmann further testified that he was present at the interview of def...