People v. Gayton

• Decision Date: 19 December 1997
• Docket Number: No. 3-96-0460,3-96-0460
• Citation: 688 N.E.2d 1206,293 Ill.App.3d 442
• Parties: , 228 Ill.Dec. 229 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Terrance A. GAYTON, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1206

688 N.E.2d 1206

293 Ill.App.3d 442, 228 Ill.Dec. 229

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Terrance A. GAYTON, Defendant-Appellant.

No. 3-96-0460.

Appellate Court of Illinois,

Third District.

Dec. 19, 1997.

Tracy McGonigle, Office of the State Appellate Defender, Ottawa, John F. Klunk, Lockport, for Terrance A. Gayton.

John X. Breslin, Deputy Director, State's Attorneys Appellate Prosecutor, Ottawa, Stewart Umholtz, State's Attorney, Pekin, Gary F. Gnidovec, State's Attorneys Appellate Prosecutor, Ottawa, for the People.

Presiding Justice LYTTON delivered the opinion of the court:

Following a jury trial, defendant Terrance A. Gayton was convicted of theft by deception. 720 ILCS 5/16-1(a)(2) (West 1994). On appeal, he contends (a) the trial judge erred in admitting into evidence defendant's driver's abstract and police testimony about the contents of his criminal history sheet, and (b) the State failed to prove its case beyond a reasonable doubt. We reverse and remand for a new trial.

The evidence showed that defendant went to a used car dealership, placed an $1800 down payment on a 1988 Chevrolet Baretta, and filled out a loan application for the balance. Some of the information on the application, including defendant's social security number, driver's license number, employer, and insurance carrier, was incorrect. Before the loan application was processed by the finance company, defendant was given possession of the car. When the finance company denied the application and detailed the reasons for its denial, the dealership notified the police, who subsequently arrested the defendant.

I.

At trial, the State argued that defendant's driver's abstract and testimony regarding the content of his criminal history sheet should be admitted under the business records exception to the hearsay rule. See 725 ILCS 5/115-5 (West 1994); People v. Tsombanidis, 235 Ill.App.3d 823, 176 Ill.Dec. 426, 601 N.E.2d 1124 (1992). Under the applicable statute, a party seeking to introduce a business record must show that the writing was made as a record or memorandum of an act or event, the writing was made in the regular course of business, and it was the regular course of the business to make such a record at the time of transaction or within a reasonable time thereafter. 725 ILCS 5/115-5(a) (West 1994).

In seeking to introduce this evidence, the State contended that the records pertained to defendant's intent to defraud by revealing that defendant had previously used multiple social security and driver's license numbers. Defense counsel objected on the basis that the business records statute excludes records made during an investigation of an alleged offense or during an investigation relating to pending or anticipated litigation. 725 ILCS 5/115-5(c)(2) (West 1994); see also People v. Strausberger, 151 Ill.App.3d 832, 834, 104 Ill.Dec. 970, 972, 503 N.E.2d 832, 834 (1987) ("police reports * * * are not admissible as business records"). Nonetheless, the prosecutor responded, "We're not talking about the pending investigation. This is information that's been submitted based upon arrests and prior convictions * * *." The trial judge overruled defendant's objection.

The admission of evidence is within the sound discretion of trial judge and will not be reversed absent an abuse discretion to the prejudice of the defendant. People v. Morrow, 256 Ill.App.3d 392, 396, 195 Ill.Dec. 86, 90, 628 N.E.2d 550, 554 (1993).

Although business records may be admitted into evidence, the applicable statute provides exceptions to the rule. 725 ILCS 5/115-5 (West 1994). The statute specifically excludes writings or records made "by anyone during an investigation of an alleged offense or during any investigation relating to pending or anticipated litigation of any kind." 725 ILCS 5/115-5(c)(2) (West 1994) (emphasis added). "An" is the English indefinite article, equivalent to "one" or "any", and "any" indicates "all" or "every". Black's Law Dictionary 77, 86 (5th ed. 1979); see also People ex rel. Scott v. Silverstein, 94 Ill.App.3d 431, 434, 50 Ill.Dec. 93, 95, 418 N.E.2d 1087, 1089 (1981) ("The word 'any' has broad and inclusive connotations"). Thus, while the State's claims that the statute bars only those writings and records made in the course of investigating this specific offense, this is not what the statute says. In People v. Woodard, 175 Ill.2d 435, 443, 222 Ill.Dec. 401, 405, 677 N.E.2d 935, 939 (1997), our supreme court recently stated that "The primary rule of statutory construction is to ascertain and give effect to the intention of the legislature, and that inquiry appropriately begins with the language of the statute." The statute is clear: writings and records made within the context of investigating pending or anticipated criminal prosecutions are not to be admitted as business records. Here, the admission of defendant's driver's abstract and testimony about his criminal history sheet constituted an abuse of discretion.

Further, we cannot accept the State's contention that any error in admitting this evidence was harmless beyond a reasonable doubt. A central issue in this case was the defendant's...