People v. Boyd

No. 2--96--0690

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Du Page County.
)
Plaintiff-Appellee, ) No. 95--CF--0953
)
v. )
)
RHONDA L. BOYD, ) Honorable
) Ronald B. Mehling,
Defendant-Appellant. ) Judge, Presiding.


JUSTICE INGLIS delivered the opinion of the court:

Defendant, Rhonda L. Boyd, was charged by indictment with one
count of deceptive practices (720 ILCS 5/17--1(B)(d) (West 1994)).
Following a bench trial, the trial court found defendant guilty,
ordered her to pay $3,541.66 in restitution, and sentenced her to
90 days' periodic imprisonment and two years' probation. We
affirm.
On January 24, 1995, defendant opened a checking account for
her business, Nutrition Plus, Inc., at the Downers Grove branch of
Superior Bank, FSB (Superior). In the days that followed,
defendant issued and deposited into the Superior account three
checks drawn on Nutrition Plus' NAB Bank account. On the morning
of January 30, 1995, using money withdrawn from the Superior
account, defendant obtained three cashier's checks for $1,668,
$2,211, and $31,000, respectively. Later that day, after learning
that Nutrition Plus' NAB account was closed, Superior ordered its
security manager, John Simmons, to retrieve the cashier's checks.
Mr. Simmons located defendant at Nutrition Plus' Naperville office,
retrieved one ($31,000) of the three cashier's checks, and informed
defendant that Superior had closed Nutrition Plus' account and that
defendant was not to write any more checks on that account.
On March 29, 1995, defendant wrote a $21,500 check drawn on
the closed Superior account and delivered that check to NBD Bank's
senior teller, Francine Podlasek, for deposit into Nutrition Plus'
NBD account. Shortly after defendant deposited the $21,500 check,
NBD learned that the Superior account was closed. NBD reported the
transaction to the local police.
Detective Kenneth Boehm of the Woodridge police department
called defendant to discuss NBD's allegations. During the
conversation, defendant admitted to depositing the $21,500 check
into the NBD account and to knowing that Nutrition Plus' Superior
account was closed when she made the deposit. Defendant explained
to Detective Boehm that the deposit had been a mistake, that she
had been expecting an insurance settlement that did not
materialize, and that she intended to make restitution to NBD.
Detective Boehm gave defendant one week to make the restitution.
During that week, defendant did not contact Detective Boehm.
Detective Boehm then made several attempts to contact defendant
without success.
On May 5, 1995, Detective Boehm arrested defendant and charged
her with deceptive practices (720 ILCS 5/17--1(B)(d) (West 1994)).
Following her arrest, defendant executed a written statement in
which she again admitted to depositing the $21,500 check into the
NBD account.
On March 28, 1996, defendant was found guilty of deceptive
practices (720 ILCS 5/17--1(B)(d) (West 1994)). The trial court
denied defendant's motion in arrest of judgment, and this appeal
followed. On appeal, defendant challenges the sufficiency of the
indictment and the sufficiency of the evidence. Defendant does not
question the propriety of her sentence.
We turn to defendant's first argument on appeal concerning the
sufficiency of the indictment. Section 17--1(B)(d) of the Criminal
Code of 1961 (Criminal Code) states that a person commits deceptive
practices when, with intent both to defraud and to obtain control
over property, she issues or delivers a check "knowing that it will
not be paid by the depository." (Emphasis added.) 720 ILCS 5/17--
1(B)(d) (West 1994). In defendant's indictment, however, the State
alleged that defendant, with the intent to defraud and to obtain
control over certain property of NBD, issued a check "knowing said
check would not be paid by the depositor." (Emphasis added.)
Because the language of the indictment does not mirror the language
of the statute, defendant argues that the indictment fails to state
an offense and therefore is void.
Defendant's argument is without merit. Where, as here,
defendant first attacks the indictment in her motion in arrest of
judgment, it is not enough to argue only that the indictment fails
to state an offense. Rather, the defendant also must show that the
indictment (1) prejudiced her defense preparation, or (2) is so
ambiguous as to create the potential for double jeopardy. 725 ILCS
5/116--2(c) (West 1994).
In this case, defendant argues only that the indictment fails
to state an offense. Defendant has never claimed that the State's
inadvertent use of the word "depositor" prejudiced her defense
preparation. Moreover, we do not find that defendant's defense
preparation was prejudiced by the indictment's wording. Very early
in the trial, defense counsel objected to a series of questions
posed to Ms. Podlasek regarding defendant's conduct following the
deposit of the $21,500 check. In support of his objection, defense
counsel presented two Illinois Appellate Court decisions discussing
whether subsequent acts can be used to show intent where the
defendant is accused of issuing bad checks in violation of section
17--1(B)(d) of the Criminal Code. In addition, defense counsel
stated:
"If she went back to the bank that day, a day later, five
weeks later, that conduct simply has nothing to do with
whether she is guilty of the offense charged, which is in this
particular case the issuing of the check. She is not charged
with somehow making the subsequent withdrawal and her intent
must be established, Judge, under all of the case law under
deceptive practices at the time that the check was deposited
in the bank." (Emphasis added.)
This statement, combined with defense counsel's frequent objections
and thorough cross-examinations, demonstrates that defendant fully
understood the nature of the charged offense and that the State's
inadvertent use of the word "depositor" in the indictment did not
prejudice defendant.
Defendant also has never claimed that the State's inadvertent
use of the word "depositor" created the potential for double
jeopardy. Indeed, such an argument would be frivolous. Under
Illinois law, a deceptive practices indictment is sufficient for
purposes of double jeopardy if it sets forth the location at which
defendant issued the check, the date on which defendant issued the
check, and the amount of the check. See People v. DiLorenzo, 169 Ill. 2d 318, 325 (1996); People v. Burke, 164 Ill. App. 3d 468, 474
(1987). In this case, defendant's indictment charged that, on
March 29, 1995, defendant attempted to defraud NBD Bank in
Woodridge, Illinois, by issuing to Francine Podlasek a $21,500
check drawn on Superior Bank. Thus, defendant's indictment
includes the amount of the check, the date of issue, and the
location of issue. In addition, the trial court record, which
includes a complete trial transcript, consists of several hundred
pages of detailed testimony, exhibits, and pleadings that leave no
ambiguity as to the conduct for which defendant was convicted.
Between the specificity of the indictment and the completeness of
the record, we are confident that, if indicted for the same
offense, defendant would be able to assert successfully a double
jeopardy defense. See DiLorenzo, 169 Ill. 2d at 325.
Because the indictment charging defendant with deceptive
practices neither prejudiced defendant's defense preparation nor
created the potential for double jeopardy, we hold that the State's
inadvertent use of the word "depositor" did not render the
indictment deficient. See 725 ILCS 5/116--2(c) (West 1994).
Defendant also argues that the indictment fails to charge an
offense because, under section 17--1(B)(d), it is not a crime to
deposit a bad check. Section 17--1(B)(d) makes it a crime
knowingly to issue a bad check to obtain control over property.
720 ILCS 5/17--1(B)(d) (West 1994). Defendant argues that one does
not obtain control over property simply by depositing a check into
one's bank account. Rather, control occurs only after one
withdraws the money from the account. Because the State alleged
only that defendant deposited the check into Nutrition Plus'
account, defendant contends that the indictment failed to charge
her with a crime.
We disagree. The facts of this case are similar to those
presented in People v. Brenner, 135 Ill. App. 3d 877 (1985). In
Brenner, the defendant knowingly deposited two bad checks into his
stock trading account. Brenner, 135 Ill. App. 3d at 880. Shortly
after depositing the checks and before the checks were dishonored,
the defendant began trading on his account. Brenner, 135 Ill. App.
3d at 880. The defendant quickly accumulated substantial losses,
and the brokerage house closed his account after learning that his
checks would not be honored. Brenner, 135 Ill. App. 3d at 880-81.
The Appellate Court, First District, affirmed the defendant's
deceptive practices conviction and held that the defendant
committed the crime at the time he deposited the checks. Brenner,
135 Ill. App. 3d at 883-84. The court explained that, when he
deposited the checks, defendant (1) knew the checks would not be
paid, and (2) obtained the ability to trade on his account.
Brenner, 135 Ill. App. 3d at 883-84. Although the court considered
the fact that the defendant actually began to trade on the account,
it did so only as evidence of defendant's intent to defraud at the
time of the deposit. Brenner, 135 Ill. App. 3d at 883-84. The
court held that the failure to have sufficient funds is prima facie
evidence of intent to defraud. Brenner, 135 Ill. App. 3d at 884.
It follows, therefore, that once a bad check is deposited it is
evidence of an intent to defraud and to obtain control.
In this case, the indictment charged defendant with the
identical conduct for which the defendant in Brenner was convicted.
Specifically, the indictment alleged that, when defendant deposited
the $21,500 check into Nutrition Plus' NBD account, she (1) knew
that the check would not be honored; (2) intended to defraud NBD;
and (3) intended to obtain control over NBD's property. The
State's failure to allege that defendant withdrew money from the
NBD account is immaterial because, like Brenner, defendant obtained
control over the money as soon as she deposited it. Accordingly,
we hold that the indictment properly charged defendant with
deceptive practices.
Defendant next argues that the trial court erroneously
convicted her of a felony because the indictment did not charge a
felony offense. Under section 17--1(B), it is a misdemeanor to use
a bad check to obtain control over property valued at $150 or less.
720 ILCS 5/17--1(B) (West 1994). If the value of the property
exceeds $150, the offense is a felony. 720 ILCS 5/17--1(B) (West
1994). Defendant again argues that, with checks, control occurs
only after one withdraws money from the account into which the
check was deposited. Defendant claims that, because the State
alleged only that defendant deposited the check and not that
defendant withdrew money from the account, the State failed to
allege the value of the property over which defendant obtained
control. Defendant contends that, in the absence of a specific
allegation that defendant obtained control over property valued in
excess of $150, the indictment failed to charge a felony.
As discussed above, defendant's suggestion that she did not
obtain control over the money in Nutrition Plus' account at the
time of the deposit is erroneous. See Brenner, 135 Ill. App. 3d at
883-84. Under Brenner, when the State alleged that defendant
deposited a $21,500 check into the NBD account, the State alleged
that defendant obtained control over that $21,500. We therefore
hold that the State properly alleged the elements of the felony
offense and that defendant's felony conviction was valid.
Finally, defendant argues that the State failed to prove
beyond a reasonable doubt that, when she deposited the $21,500
check, defendant intended to defraud NBD. In support of her
contention, defendant relies upon her statement to Detective Boehm
that, when she deposited the $21,500 check, she was expecting an
insurance settlement that did not materialize and that the
settlement would have covered the check. Defendant contends that
her statement to Detective Boehm (1) provides an innocent
explanation for her deposit of the $21,500 check, and (2) must be
taken as true because the State offered no evidence to rebut
defendant's assertions.
Our standard of review on a challenge to the sufficiency of
the evidence is whether, after reviewing the evidence in a light
most favorable to the State, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable
doubt. People v. Lovings, 275 Ill. App. 3d 19, 22 (1995). We will
not reverse a criminal conviction unless the evidence is so
unreasonable, improbable, or unsatisfactory as to justify a
reasonable doubt of the defendant's guilt. Lovings, 275 Ill. App.
3d at 22.
In this case, defendant's account of her elusive insurance
settlement is not the entire story. On the contrary, Officer Boehm
testified that, in addition to explaining the mishap with the
insurance settlement, defendant admitted that, at the time she
deposited the $21,500 check, she knew that her Superior account was
closed. In addition, Mr. Simmons testified that, on January 30,
1995, he met with defendant and advised her that Superior was
closing her account and that she was not to write any additional
checks on that account. Significantly, neither Officer Boehm's nor
Mr. Simmons' testimony was rebutted or contradicted.
Given Detective Boehm's and Mr. Simmons' uncontradicted
testimony, it was reasonable to conclude that, at the time
defendant deposited the $21,500 check, she knew that the Superior
account was closed. It was therefore plausible to conclude that
defendant's only purpose for writing a $21,500 check on a closed
account was to defraud NBD.
Although defendant insists that her story regarding the
insurance settlement provided an innocent explanation for this
whole episode, we fail to see the connection. To be sure,
defendant's story might explain why defendant did not have the
money to cover the check, but it does not explain why defendant
chose to write the check on an account that she knew was closed.
The conclusion that defendant intended to defraud is fully
supported by the evidence.
Accordingly, we hold that the evidence was sufficient to
support the trial court's conclusion that, when she deposited the
$21,500 check, defendant intended to defraud NBD.
For the reasons set forth above, the judgment of the circuit
court of Du Page County is affirmed.
Affirmed.
BOWMAN and HUTCHINSON, JJ., concur.