People v. Perry

• Decision Date: 07 October 2005
• Docket Number: No. 2-04-0398.,2-04-0398.
• Citation: 836 N.E.2d 387
• Parties: The PEOPLE of The State of Illinois, Plaintiff-Appellee, v. Michael L. PERRY, Defendant-Appellant.
• Court: Illinois Supreme Court

836 N.E.2d 387

The PEOPLE of The State of Illinois, Plaintiff-Appellee, v. Michael L. PERRY, Defendant-Appellant.

No. 2-04-0398.

Appellate Court of Illinois, Second District.

October 7, 2005.

COPYRIGHT MATERIAL OMITTED

G. Joseph Weller, Deputy Defender, and Thomas A. Lilien (Court-appointed), Office of the State Appellate Defender, Elgin, for Michael L. Perry.

Joseph E. Birkett, Du Page County State's Attorney, Wheaton, Martin P. Moltz, Deputy Director, State's Attorneys Appellate Prosecutor, Elgin, Kristine A. Karlin, Mt. Prospect, for the People.

Justice KAPALA delivered the opinion of the court:

Defendant, Michael L. Perry, appeals from his conviction in the circuit court of Du Page County of theft by deception (720 ILCS 5/16-1(a)(2)(A) (West 2000)). We affirm as modified and remand for a new sentencing hearing.

I. BACKGROUND

Defendant was convicted at a jury trial of theft by deception (720 ILCS 5/16-1(a)(2)(A) (West 2000)) for failing to pay charges related to a hotel room he and his wife and children used. At trial the following evidence was presented. The State called Kimberly Turnage, who was the senior sales manager at the Embassy Suites, in Lombard, Illinois. Her responsibilities included booking rooms for lodging and meetings and negotiating rates. In January 2000, Turnage was contacted by defendant. Defendant was already staying at the Embassy Suites. He indicated to Turnage that he wished to negotiate a long-term rate because he would be staying for an extended time for business reasons.

As a result of their conversation, Turnage drafted a confirmation letter containing different stay dates and a discounted room rate. Defendant then sent a letter to Turnage indicating that he wished to set up direct billing to his company, Prolific Development Corp. Defendant's letter also contained various trade references. The confirmation letter sent by Turnage was signed by defendant and returned to Turnage. Turnage then passed these documents on to the Embassy Suites accounting department.

On cross-examination, Turnage admitted that defendant's letter to her requested a reduction in the rate quoted in the confirmation letter. However, defendant did eventually accept the rate in the confirmation letter by signing it. Further, Turnage admitted that she had more than one conversation with defendant regarding the room rate. Turnage also did not request a deposit on the contract because defendant was already staying at the hotel when he contacted Turnage. However, Turnage did at one point prepare a credit card authorization letter because defendant wished to pay some of his charges with the credit card of someone named Brian Green. The letter was prepared so that Green could authorize the use of his credit card to pay some of defendant's room charges. Turnage further admitted that none of the vendors defendant listed as references was checked.

On redirect examination, Turnage stated that account balances and direct billing were not part of her duties. Further, she testified that the credit card authorization letter prepared for Green's signature had never been signed. However, she was unaware of whether any charges were incurred on Green's card, as this knowledge was beyond the scope of her duties. On recross-examination, Turnage indicated that the credit card authorization letter was faxed to Green.

The State also called Sandra Deen Neely to the stand. Neely was the director of human resources at the Embassy Suites in downtown Chicago. Neely had previously worked at the Embassy Suites in Lombard as the assistant deputy manager responsible for day-to-day operations. As the assistant deputy manager, Neely became familiar with the guests at the hotel, especially the longer-term guests. Neely was the assistant deputy during the period of February 2000 through May 2000. During this time, she became familiar with defendant because he was a long-term guest. Neely estimated that she had contact with defendant about four times, which consisted of just greetings. Although Neely had not spoken with defendant about billing or his account, she did become aware around April or May 2000 that there was a problem with defendant's billing and his account. This information was relayed to her by the controller of the hotel, Karen Trajkovich. Trajkovich was responsible for billing and accounting. Trajkovich provided Neely with defendant's letter requesting billing directly to Prolific and with defendant's list of references. Both documents were on "Prolific Development Corp." letterhead, which included an address, phone number, fax number, and e-mail address. The letter indicated that defendant was the president of Prolific. The documents also listed defendant and Lee Mandel, CPA, as the contact persons. Neely attempted to contact defendant through the e-mail address listed on the letterhead but was unsuccessful. Neely also contacted Lee Mandel, and he informed her that he was not connected with Prolific. Neely then contacted Budget Rent-A-Car because defendant had listed the company as a trade reference. Budget informed Neely that defendant did not have a valid account with the company. She was aware from defendant's file that his charges were in excess of $15,000. According to Neely, defendant never contacted her or made any efforts to pay his bill.

On cross-examination, Neely admitted that up until the point that she became involved with defendant's account, the responsibility for the account would have been solely with the controller. Further, she testified that the accounting department normally set up a process through the corporate office to check trade references before setting up direct billing. However, that was not done in this case, because the accounting department did not feel that it had all of the information that the corporate office required. Nonetheless, the general manager of the hotel signed off on the direct billing request without checking any of defendant's trade references. Neely admitted that even though the references were submitted by defendant in January 2000, they were not checked until May 2000. At the time defendant and his family initially checked in, they paid for their room with a credit card.

The State next called Trajkovich to the stand. She testified that she had been employed by the Embassy Suites in Lombard since November 1992 and has been controller since July 1999. Trajkovich was approached by Turnage to set up direct billing for defendant. Turnage provided Trajkovich with the letter and reference sheet from defendant. Trajkovich testified that the usual practice for approving direct billing requests involved running all application materials through the corporate office. This process required Trajkovich to supply background data such as bank information. The basic process involved a type of credit check based on the person's banking information. However, Trajkovich did not have the required information with respect to defendant.

Trajkovich then informed Turnage that direct billing could not be set up due to the lack of information. Subsequently, the general manager at the time, Robert Hjort, approached Trajkovich and told her to set up direct billing for defendant anyway and that Hjort would approve it. As a result of this request, Trajkovich set up the direct billing account for defendant. The account was set up to bill Prolific as defendant had requested in his letter. Hjort signed the authorization for direct billing. Direct billing for defendant's charges began on February 8, 2000. Trajkovich sent a letter to defendant indicating the approval of his direct billing request. Among the terms indicated in the letter was that payment was due within 30 days of the statement date.

The first bill sent to Prolific was for $3,877.94 and included room charges plus tax as well as restaurant charges and copying charges. The bill was sent on March 3, 2000, to the address for Prolific that had been provided by defendant. On March 20, 2000, Trajkovich sent out another bill, again mailing it to Prolific. This bill showed the previous balance of 3,877.94, which had remained unpaid, and new charges totaling $3,106.79, for a total due of $6,984.73. This new grand total covered charges from February 8, 2000, through March 16, 2000, and included charges for the room, tax, restaurant charges, laundry charges, and phone calls. There was a tax credit on the bill because after 30 days of stay, tax was no longer charged by the state. On April 4, 2000, because defendant had failed to pay any of the charges, Trajkovich left defendant a message at the phone number that defendant had provided in his letter. She left a message indicating that there was an outstanding balance and requesting the status of the payment. Defendant did not return the phone call.

On April 14, 2000, Trajkovich mailed to Prolific another billing statement, which stated the current and total charges, and a collection letter, which stated that payment was past due and that prompt payment would be appreciated. The total charges indicated in the statement and letter were through April 9, 2000, and amounted to $10,033.11. The new charges included room charges, restaurant charges, laundry charges, phone calls, and a postage charge. On April 28, 2000, Trajkovich sent another bill and collection letter because she had yet to receive a payment or a response from defendant. She slid this letter under defendant's hotel room door when she did not receive any payment or response after she mailed the letter. This letter indicated that over 60 days had passed since the initial bill had been mailed, that $10,033.11 was the previous unpaid balance, and that the current charges amounted to $1,992.81. The total balance amounted to $12,025.92 and covered February 8, 2000, through April 19, 2000. The letter also informed defendant to contact Trajkovich if he needed an explanation of the charges. Once again there were additional charges for...