People v. Gayton

No. 3--96--0460
_________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 1997


PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit Court
) for the 10th Judicial Circuit
Plaintiff-Appellee, ) Tazewell County, Illinois
)
v. ) No. 95-CF-33
)
TERRANCE A. GAYTON, ) Honorable
) Scott A. Shore
Defendant-Appellant. ) Judge, Presiding

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PRESIDING JUSTICE LYTTON delivered the opinion of the court:
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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, 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, 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, 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, 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, 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 intent to
defraud. Thus, during closing argument before the jury, the
prosecutor repeatedly emphasized the significance of defendant's
criminal history sheet and driver's abstract:
"There was a driver's license number reflected on the
[financing] application. Again you'll see that
application with a number on it. Whether that was a
false number or not may be up to your interpretation * *
* you heard evidence and you'll see a document in the
jury room that indicates this individual has three
different driver's license numbers assigned to him * * *
remember the testimony that came forth from the
individual from the Department of the State Police that
showed the various social security numbers that had been
at some point used by the Defendant. One of those
numbers he had used previously was also the same number
that was on the financial application. * * * [W]hat
doubt is here -- is it reasonable? Is it reasonable in
light of -- numerous social security numbers? It is
reasonable in light of the numerous social security
numbers? * * * He gave false employment information;
false driver's license information; false social security
information. Did the salesman make a mistake on those
numbers? I suppose it's possible. But is it reasonable
to believe that he made the mistake on [what] was the
same number this man had used before?"
Under these circumstances, we reject the assertion that the error
invited by the State was harmless. See People v. Berberena, 265
Ill. App. 3d 1033, 1046, 639 N.E.2d 599, 608 (1994) (where
appellate court is unable to conclude beyond a reasonable doubt
that the outcome would have been the same, erroneous admission of
evidence requires new trial).
II.
We have also reviewed defendant's claim that the evidence was
insufficient to prove that a victim relied upon the alleged
falsehoods and/or that defendant acted with the specific intent to
defraud. See People v. Davis, 112 Ill. 2d 55, 62-63, 491 N.E.2d 1153, 1156 (1986); People v. McManus, 197 Ill. App. 3d 1085, 1095,
555 N.E.2d 391, 399 (1990). After reviewing the evidence in the
light most favorable to the State (People v. Collins, 106 Ill. 2d 237, 261, 478 N.E.2d 267, 277 (1985)), we conclude that the State
presented sufficient evidence which, if believed by the trier of
fact, could support a conviction.
The judgment of the circuit court of Tazewell County is
reversed and this cause is remanded for a new trial.
Reversed and remanded.
HOMER and SLATER, JJ., concur.