Opinion · Illinois Supreme Court
People v. Brown
1 N.E.3d 888
- Type
- Opinion
- Court
- Illinois Supreme Court
- Jurisdiction
- Illinois
- Date
- 2013-12-19
- Topic
- litigation
“When a reviewing court reverses a conviction based on evi-dentiary insufficiency, the constitutional prohibition against double jeopardy ... precludes the State from retrying the defendant.”
Citator
- Cited by
- 26 opinions
2013 IL 114196
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket No. 114196)
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.
TIFFANY BROWN, Appellant.
Opinion filed December 19, 2013.
JUSTICE FREEMAN delivered the judgment of the court, with
opinion.
Chief Justice Garman and Justices Karmeier, Burke, and Theis
concurred in the judgment and opinion.
Justice Thomas specially concurred, with opinion, joined by
Justice Kilbride.
OPINION
¶1 Following a bench trial in the circuit court of Cook County,
defendant, Tiffany Brown, was convicted of several offenses,
including forgery by making a counterfeit check (720 ILCS 5/17-
3(a)(1) (West 2006)), forgery by delivering the check (720 ILCS
5/17-3(a)(2) (West 2006)), and attempted theft by delivering the
check (720 ILCS 5/8-4, 16-1(a)(1)(A) (West 2006)). The appellate
court, inter alia, upheld defendant’s convictions for forgery by
making the check and for attempted theft, and vacated the conviction
for forgery by delivery. 2011 IL App (1st) 101391-U
.
¶2 This court allowed defendant’s petition for leave to appeal. Ill. S.
Ct. R. 315 (eff. Feb. 26, 2010). Defendant challenges only her
conviction for forgery by making the check. We now affirm in part
and reverse in part the judgment of the appellate court and the
judgment of the circuit court.
¶3 I. BACKGROUND
¶4 In August 2006, defendant was approximately 35 years old and
had been a Chicago police officer for nearly seven years.1 Defendant’s
sister was Abeni Brown and defendant’s mother was Zenobia Brown.
Defendant maintained a checking account at the Chicago Patrolmen’s
Federal Credit Union (credit union).
¶5 On August 31, 2006, defendant entered the credit union and,
while talking on her cell phone, presented to a teller, Samara Galvan,
a letter, a check, a deposit slip, and identification. The letter
purportedly related to a lawsuit in “the court room of Judge G.
Imgram,” where the plaintiff was Abeni and the defendant was Six
Flags Great America. The letter described an August 25, 2006, ruling
in favor of Abeni in the amount of $3.5 million. The letter also
designated as “beneficiaries” defendant, to receive $1 million;
Zenobia, to receive $2 million; and defendant’s cousin, Ahmad
Murphy, to receive $500,000. Further, the letter contained the
signatures of “the clerk of Judge G. Imgram,” “Attorney at Law Susan
T. Mitchell,” “Attorney at Law Bennetta C. Thompson,” and “CEO,
Six Flags Great America[,] Dr. Bryan D. Douglas.”
¶6 The check, dated August 25, 2006, was purportedly drawn on the
JPMorgan Chase bank account of Six Flags Great America, made
payable to defendant in the amount of $1 million. The drawer’s
signature was “Bryan Douglas.” On the reverse side, defendant
endorsed the check with her signature and credit union member
number. The check raised several red flags for Galvan. Initially, three
sets of numbers were printed at the bottom of the check instead of the
usual two, and none were the customary nine-digit routing number.
Also, the texture of the check and the print font were atypical.
Further, $1 million would typically be deposited by wire transfer and
not by check.
¶7 Galvan left the teller window to speak with her manager, Maria
Villasenor. Galvan showed Villasenor the letter, check, and deposit
slip. Villasenor glanced at the check but did not observe its amount.
She instructed Galvan to accept the check. Galvan also photocopied
the letter and the deposit slip and kept them with the check. She
returned to the teller window, where defendant was still talking on her
cell phone. Defendant asked Galvan what was wrong, and Galvan
1
Defendant stated in the presentence investigation report that she was
employed by the department from November 1999 to January 2009.
-2-
responded that “everything was okay.” Defendant told Galvan that her
lawyer was on the phone and would speak to Galvan if there were a
problem. Galvan responded that she did not need to speak to
defendant’s lawyer.
¶8 The following day, September 1, 2006, a credit union employee
informed Villasenor that the credit union scanner would not accept
defendant’s check because it could not read the routing number.
Villasenor instructed the employee to verify the routing number. The
employee returned with the check and told Villasenor that the routing
number was missing a digit. Villasenor looked closely at the check
and saw that it was written in the amount of $1 million. She had
never before seen a check for $1 million. During her banking career,
Villasenor had received training in identifying counterfeit checks. She
suspected that the purported business check was counterfeit based on
the arrangement of the routing numbers, the texture of the paper, and
the check’s “rainbow” or “cotton candy” color.
¶9 Suspecting that the check was counterfeit, Villasenor telephoned
JPMorgan Chase Bank, which confirmed that the check was not
drawn on that bank. Villasenor then placed a permanent hold on
defendant’s deposit. According to Villasenor, the check had to go
through the banking system to be stamped “counterfeit.” Pursuant to
credit union procedure, Villasenor sent a letter to defendant informing
her that there was a permanent hold on her deposit.
¶ 10 On September 7, 2006, defendant telephoned Villasenor to ask
what the letter meant. Villasenor told defendant that because the
check was for such a large amount, a hold had been placed until the
check cleared. Defendant told Villasenor that defendant won a lawsuit
against Great America, and that someone from Great America was
supposed to telephone the credit union to verify that the check was
good. Defendant then told Villasenor that someone from Chase Bank
was supposed to call the credit union. Defendant finally told
Villasenor that she would instruct her lawyer to call Villasenor to
inform her that the check was good. No one from Great America or
Chase Bank, or any attorney, ever contacted Villasenor and told her
that the check was good.
¶ 11 On September 11, 2006, the credit union’s accounting department
formally notified Villasenor that the check had been determined to be
counterfeit. Villasenor called defendant on a speaker phone in the
presence of the credit union’s chief operating officer James Bedinger.
Villasenor informed defendant that Chase Bank returned the check,
-3-
and that the $1 million would be debited from her account. Defendant
responded that Great America had filed for bankruptcy. Villasenor
asked when did defendant learn that, to which defendant answered
“this morning.” Villasenor told defendant that Villasenor would have
to debit the $1 million, to which defendant responded, “Well I’m
going to have to sue Great America again then.”
¶ 12 Chicago police detective Francisco Roman was assigned to
investigate this case. He learned that: there was never a lawsuit filed
or settled between Abeni and Great America; there was no one named
Bryan Douglas at Great America; there were no licensed Illinois
attorneys named Susan T. Mitchell or Bennetta C. Thompson; and
Great America never issued any check to defendant or any member
of her family. On September 27, 2006, Detective Roman arrested
defendant for attempted theft and forgery by delivery. After her arrest,
Detective Roman permitted defendant to use the telephone.
Defendant indicated that she was going to call several persons
including Zenobia and an attorney named Bennetta Thompson.
¶ 13 In November 2006, the original arrest charges were superceded by
a seven-count indictment. Defendant was again charged with
attempted theft by delivering the counterfeit check (count III) and
forgery by delivering the check (count II), but also with forgery by
making the check (count I). Defendant was additionally charged with
three counts of official misconduct (720 ILCS 5/33-3(b) (West 2006))
predicated on the attempted theft and forgery charges (counts IV, V,
and VI), and one count of official misconduct in that, by making the
check, she violated a Chicago police department rule prohibiting
conduct that brings discredit upon the department (count VII).
¶ 14 In October 2009, defendant waived a jury, and the court
conducted a bench trial on all counts. The State’s evidence adduced
the above-recited facts. Detective Roman further testified that, in the
course of his investigation, he discovered two police reports, dated
early August 2006, identifying Abeni as an offender and defendant as
the victim. Also, on cross-examination, Detective Roman testified
that he was unable to find any evidence that defendant actually
created the settlement letter or affixed any signatures thereto. Roman
was likewise unable to find any evidence that defendant actually
created the check or affixed thereto the signature of “Bryan Douglas”
as the purported drawer.
¶ 15 Additionally, the parties stipulated that if Cynthia Reising were
called as a witness, she would testify as follows. Reising is the
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comptroller of Six Flags Great America. Great America did not issue
the purported check. The drawer address on the check was incorrect;
the check was not drawn on a bank that Great America used; the
check contained numbers that did not match any Great America
account; any payment from Great America requires two signatures on
a check; and Bryan Douglas was neither an authorized signatory nor
even an employee of Great America. Further, employment records
indicate that Abeni was employed at Great America from May 8,
2004, until June 11, 2004, when her employment was terminated for
tardiness and unsatisfactory work.
¶ 16 The trial court admitted the State’s exhibits without objection, and
the State rested. Defendant moved for a directed finding of not guilty.
Defendant argued that the State failed to present in its case in chief
any evidence that she: (1) created the check, or (2) delivered the
check to the credit union knowing that the check was counterfeit. The
trial court denied defendant’s motion as to all counts.
¶ 17 Defendant testified as follows. In addition to being a college
graduate and a single mother of one son, she was raising her two
nephews from her sister Abeni. She was raising Abeni’s children
because “more often than not” Abeni had not been in their lives due
to her repeated legal problems. In 2005, Abeni was convicted and
sentenced for forging defendant’s name on a check for $80 and
cashing it. She was released in 2006. Abeni was arrested again for
buying an automobile and renting a condominium in defendant’s
name. Next, in early August 2006, Abeni went to the credit union
wearing a wig to impersonate defendant, forged defendant’s name,
and withdrew $700 from an account jointly held by Abeni, Zenobia,
and defendant. Abeni’s name was thereafter removed from the
account.
¶ 18 In late 2006, Zenobia told defendant that Abeni had settled a
lawsuit against Great America, where defendant knew that Abeni had
worked. Zenobia also told defendant that Abeni was dying, and that
Abeni was distributing the settlement proceeds between Zenobia,
defendant, Abeni’s children, and defendant’s cousin, Ahmad Murphy.
Zenobia gave defendant the $1 million check payable to defendant
and the settlement letter. Defendant testified that she was “in shock
*** [b]ecause for the first time in Abeni’s life she was going to do
right by her children and right by my mother and myself.” Defendant
did not independently confirm any of this information; she accepted
it at face value from her mother.
-5-
¶ 19 On August 31, 2006, with the settlement letter in hand, defendant
went to the credit union to deposit the check in her checking account.
Defendant believed that the letter was genuine. She denied creating
the letter or affixing any signatures to it. Defendant likewise believed
that the check was genuine. She did endorse the check. However,
defendant denied that she created, or played any part in creating, the
check. Defendant acknowledged that she was talking on her cell
phone while depositing the check. Defendant testified that she was
speaking to the purported attorney “Bennetta C. Thompson.” Prior to
the deposit, defendant and Zenobia had spoken with “Thompson” and
“Susan T. Mitchell.” By the time of her trial, defendant had learned
that “Thompson” was not a licensed Illinois attorney, but was
working with Abeni.
¶ 20 After receiving the credit union notice that a hold was placed on
her deposit, she acknowledged that she telephoned Villasenor to ask
what the letter meant. However, defendant denied telling Villasenor
that defendant had a lawsuit against Great America. Rather, defendant
told Villasenor that Abeni was the plaintiff in that case. During this
conversation, defendant relayed information from one of Abeni’s
purported attorneys to Villasenor. During the September 11, 2006,
phone call between defendant and Villasenor, defendant told
Villasenor that Great America had filed for bankruptcy because
defendant had received that information from “Thompson.”
¶ 21 Defendant thereafter left several messages for “Thompson,”
which were never returned. Also, defendant unsuccessfully tried to
locate Abeni. After defendant’s arrest, she learned that the check was
counterfeit, Abeni was not sick, and that “this was just another of her
[Abeni’s] schemes.” Defendant had not had any contact with Abeni
subsequent to defendant’s arrest.
¶ 22 Ahmad Murphy testified as follows. Zenobia is his paternal aunt,
and Abeni and defendant are his cousins. Murphy grew up in Chicago
and South Carolina, and eventually attended high school in South
Carolina. He attended college and found employment in North
Carolina. As a child, when Murphy was in Chicago, he lived with
defendant, whom he described as “[s]ort of a surrogate mother,” who
“helped raise” him.
¶ 23 In April 2006, Murphy was attending college when Zenobia
telephoned to inform him that Abeni was sick and had given him
money from the settlement of a lawsuit. Murphy flew to Chicago and
stayed with defendant. Murphy met with Zenobia, who gave Murphy
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a check for $500,000 payable to him. Murphy was “shocked” and
“surprised” because “Abeni has caused a lot of grief with our family.”
¶ 24 The check that Zenobia gave to Murphy looked like the check that
she gave to defendant, except that Murphy’s check was payable to
him in the amount of $500,000. Murphy did not attempt to verify that
the check was genuine because he did not believe that the check was
counterfeit. He never spoke to Abeni about the check because he did
not know where Abeni was when he received the check. Murphy
endorsed the check and deposited it into his account with Bank of
America in Chicago. In September 2006, Murphy learned from
defendant or Zenobia that the check was counterfeit, and that Abeni
was not sick or dying. No one, including his bank, has contacted
Murphy regarding the counterfeit check he deposited.
¶ 25 In January 2010, following the close of evidence and argument,
the trial court found defendant guilty as charged on all counts.
Defendant timely filed a posttrial motion for judgment of acquittal,
or alternatively, a new trial. At the May 2010 hearing on the motion,
defendant argued that the State failed to prove her guilty of the
charged offenses beyond a reasonable doubt. The State confessed
error as to count VII, the charge of official misconduct based on
violating a Chicago police department rule prohibiting conduct that
brings disrepute upon the department.2 The trial court granted
defendant’s motion for acquittal on count VII, but denied her motion
as to the remaining charges. The court sentenced defendant to two
years’ probation and 50 hours of community service on counts I
through VI.
¶ 26 On appeal, the appellate court found no evidence in the record
that defendant was acting in her official capacity as a police officer
when she deposited the check. Accordingly, the court reversed
defendant’s three remaining official misconduct convictions as
charged in counts IV, V, and VI. 2011 IL App (1st) 101391-U
, ¶¶ 25-
29. Also, the appellate court found that the conviction for forgery by
delivering the check as charged in count II, and the conviction for
attempted theft by delivering the check as charged in count III,
violated the one-act, one-crime doctrine. The court further observed
that the Class 2 offense of attempted theft was a more serious offense
2
See People v. Williams, 393 Ill. App. 3d 77, 82-84
(2009) (police
department rules and regulations not predicate “laws” under official
misconduct statute), aff’d, 239 Ill. 2d 119
(2010).
-7-
than the Class 3 offense of forgery. Accordingly, the court vacated
defendant’s conviction of forgery by delivery as charged in count II.
Id. ¶ 32. However, the appellate court held that defendant’s
endorsement on the back of the check constituted “making” the
check. Accordingly, the court upheld defendant’s conviction for
forgery by making the check as charged in count I. Id. ¶¶ 18-24.3
¶ 27 Defendant appeals to this court. Additional pertinent background
will be discussed in the context of our analysis of the issues.
¶ 28 II. ANALYSIS
¶ 29 Before this court, defendant does not challenge her conviction of
attempted theft by delivering the counterfeit check. Rather,
defendant’s sole contention is that the evidence fails to establish that
she committed the offense of forgery by making the check (720 ILCS
5/17-3(a)(1) (West 2006)).
¶ 30 A. Mootness
¶ 31 The State initially responds that this contention is moot. The State
observes as follows. Defendant was convicted not only of forgery by
making the check, but was also convicted of forgery and attempted
theft by delivering the check (720 ILCS 5/8-4, 16-1(a)(1)(A), 17-
3(a)(2) (West 2006)), which she does not contest. Attempted theft is
the greatest offense of which defendant was convicted, and she
received a single sentence of probation. Therefore, according to the
State, “it is of no consequence whether defendant is also guilty of
forgery on another basis.”
¶ 32 We disagree with the State that this issue is moot. The record
shows that defendant was convicted of counts I through VI, and
defendant’s sentencing order expressly states that she received a
single sentence on those counts. Also, the sentencing order cites
specifically to both the “making” and “delivery” provisions of the
forgery statute (720 ILCS 5/17-3(a)(1), (a)(2) (West 2006)). Thus,
defendant’s record clearly indicates that she was convicted of forgery
by making the check. This alleged surplus conviction not only may
3
The appellate court further reasoned that defendant’s conviction for
forgery by making the check and her conviction for attempted theft by
delivering the check did not violate the one-act, one-crime doctrine because
they were based on different acts. Id. ¶ 33.
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prejudice defendant in the future (see People v. Davis, 156 Ill. 2d 149, 160
(1993); People v. Lilly,56 Ill. 2d 493, 495
(1974)), but also
affects the integrity of the judicial process (People v. Artis, 232 Ill. 2d 156, 165-68
(2009); People v. Harvey,211 Ill. 2d 368, 389
(2004)).
¶ 33 Additionally, we observe that defendant was sentenced in May
2010. Therefore, she could already have served her sentence of two
years’ probation and 50 hours of community service. However, the
nullification of a conviction unquestionably may have important
consequences to a defendant, whether or not the attendant sentence
has been served. “In such circumstances, ‘the probability that a
criminal defendant may suffer collateral legal consequences from a
sentence already served precludes a finding of mootness.’ ” People v.
Jordan, 218 Ill. 2d 255, 263
(2006) (quoting People v. Jones,215 Ill. 2d 261, 267
(2005)).
¶ 34 B. Endorsement
¶ 35 Turning to the merits, defendant contends that the record does not
contain any evidence that she created the bogus check. According to
defendant her conviction for forgery by making the check was based
solely on the fact that she endorsed the check in her own name.
However, prior to considering the sufficiency of the evidence, we
must first determine whether defendant’s endorsement of the check
constituted “making” the check within the meaning of the forgery
statute. This is a matter of statutory construction, which is a question
of law reviewed de novo. People v. Howard, 228 Ill. 2d 428, 432
(2008); People v. Harris,203 Ill. 2d 111, 116
(2003).
¶ 36 The principles guiding our review are familiar. The primary
objective in construing a statute is to ascertain and give effect to the
intent of the legislature. The most reliable indicator of legislative
intent is the language of the statute, given its plain and ordinary
meaning. A court must view the statute as a whole, construing words
and phrases in light of other relevant statutory provisions and not in
isolation. Each word, clause, and sentence of a statute must be given
a reasonable meaning, if possible, and should not be rendered
superfluous. The court may consider the reason for the law, the
problems sought to be remedied, the purposes to be achieved, and the
consequences of construing the statute one way or another. Also, a
court presumes that the General Assembly, in its enactment of
legislation, did not intend absurdity, inconvenience, or injustice.
-9-
People v. Gutman, 2011 IL 110338, ¶ 12
; People v. Zimmerman,239 Ill. 2d 491, 497
(2010).
¶ 37 This court has explained that, prior to the Criminal Code of 1961,
several separate statutes prohibited the forgery of specific types of
documents and prescribed different penalties depending on the
instrument involved. Section 17-3 of the Criminal Code of 1961
incorporates and codifies all forms of forgery into a single criminal
statute. People ex rel. Miller v. Pate, 42 Ill. 2d 283, 285-86
(1969);
see People v. Lanners, 122 Ill. App. 2d 290, 293
(1970). At the time
of defendant’s offenses, section 17-3 defined forgery in pertinent part
as follows:
“(a) A person commits forgery when, with intent to
defraud, he knowingly:
(1) makes or alters any document apparently capable
of defrauding another in such manner that it purports to
have been made by another or at another time, or with
different provisions, or by authority of one who did not
give such authority; or
(2) issues or delivers such document knowing it to
have been thus made or altered; or
(3) possesses, with intent to issue or deliver, any such
document knowing it to have been thus made or
altered[.]” (Emphases added.) 720 ILCS 5/17-3(a) (West
2006).4
¶ 38 The gist of forgery is the intent to defraud. People v. Henderson,
71 Ill. 2d 53, 57
(1978); People v. Crouch,29 Ill. 2d 485, 488
(1963).
The State must establish that a defendant had the intent to defraud by
making or altering, possessing with intent to deliver, or issuing or
delivering any document apparently capable of defrauding another.
720 ILCS 5/17-3(a)(1) to (a)(3) (West 2006); see People v. Horrell,
381 Ill. App. 3d 571, 574
(2008); People v. Stout,108 Ill. App. 3d 96, 101
(1982). By use of the disjunctive “or,” the forgery statute
4
The forgery statute defines the requisite intent to defraud as “an
intention to cause another to assume, create, transfer, alter or terminate any
right, obligation or power with reference to any person or property,” and
defines “document” as including, but not limited to, “any document,
representation, or image produced manually, electronically, or by
computer.” 720 ILCS 5/17-3(b) (West 2006).
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recognizes that these acts can be committed separately, and ensures
that a defendant is properly charged based on the stage of the process
the defendant occupies. See People v. Angarola, 387 Ill. App. 3d 732, 740
(2009).
¶ 39 Specifically regarding subsection (a)(1) of the forgery statute, the
State must prove beyond a reasonable doubt that a defendant, with the
intent to defraud, knowingly made or altered a document such that it
is capable of defrauding another. 720 ILCS 5/17-3(a)(1) (West 2006);
see Angarola, 387 Ill. App. 3d at 737
; People v. D’Andrea,361 Ill. 526, 532
(1935) (applying predecessor forgery statute). The document
“need not necessarily be in due legal form” (id. at 533), or be so
skillfully prepared that it requires an expert to detect it. Goodman v.
People, 228 Ill. 154, 158
(1907). Rather, the test of whether a forged
document is apparently capable of defrauding another is whether a
reasonable person might be deceived into accepting the document as
genuine. Id.; see People v. Turner, 179 Ill. App. 3d 510, 518
(1989);
People v. Tarkowski, 106 Ill. App. 3d 597, 601
(1982).
¶ 40 In the case at bar, defendant has steadfastly contended throughout
these proceedings that the evidence fails to establish that she created
the bogus check in violation of subsection (a)(1). The appellate court
rejected this contention. After citing People v. Epping, 17 Ill. 2d 557
(1959), and People v. Connell,91 Ill. App. 3d 326
(1980), the court
observed the uncontested fact that defendant endorsed the check. The
court concluded: “Thus, viewing the evidence in the light most
favorable to the State, we find that defendant, by endorsing the check,
made the document apparently capable of defrauding another, such
that a reasonable trier of fact could have found the essential elements
of the crime beyond a reasonable doubt.” 2011 IL App (1st) 101391
-
U, ¶ 23. Defendant assigns error to this reasoning.
¶ 41 The appellate court failed to recognize defendant’s position in the
forgery statute’s sequence of culpable events. For example, the
appellate court overlooked this court’s decision in People v.
Christison, 396 Ill. 549
(1947), where the defendant contended that
he was not properly charged with forgery because, inter alia, “the
check was not endorsed and never cashed.” (Emphasis added.) Id. at 550
. This court rejected the defendant’s contention, reasoning that the
crime of forgery is “complete” with the making of the false document
with the intent to defraud, and that it is immaterial whether anyone
was in fact defrauded. Id. at 551
(and cases cited therein). Christison
teaches that forgery by making a counterfeit check occurs at the
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check’s creation with the requisite intent to defraud. A counterfeit
check is capable of defrauding without the need to be endorsed. See,
e.g., People v. Bokuniewicz, 160 Ill. App. 3d 270, 274
(1987).
¶ 42 Further, the appellate court misapprehended this court’s decision
in People v. Epping, 17 Ill. 2d 557
(1959). That case involved an
instrument that was otherwise valid, but was made the subject of
forgery by the defendant’s false endorsement. This court explained
that the inquiry is “whether the endorsement renders the instrument
capable of defrauding and is made for that purpose. If so, the other
elements being present, it is forgery.” Id. at 569
. This court concluded
that the defendant’s forged endorsement rendered the “seemingly
valid” instrument capable of defrauding. Id.
Similarly, the defendant
in People v. Connell, 91 Ill. App. 3d 326
(1980), contended that he
did not “make” a check within the meaning of subsection (a)(1) of the
forgery statute. Rather, according to the defendant, he merely found
a valid check payable to another and endorsed the check with the
forged name of the payee. The appellate court correctly concluded
that proof of the defendant’s forged endorsement “was as a matter of
law sufficient proof of a ‘making’ of the check.” Id. at 334
.5 Epping
teaches that a false endorsement can render an otherwise valid check
capable of defrauding.
¶ 43 Considered together, Christison and Epping teach that where a
check itself is counterfeit, forgery by making occurs, or is complete,
when the check is first created with the intent to defraud. However,
where a check is valid, there is no forgery by making until someone
affixes an endorsement that renders the otherwise valid check capable
of defrauding.
¶ 44 In the case at bar, the offense of forgery by making was complete
when the counterfeit check was created. The check was capable of
defrauding without defendant’s endorsement. Therefore, defendant’s
endorsement of the check, by itself, did not render the check capable
of defrauding. Consequently, her endorsement did not constitute
“making” the check within the meaning of subsection (a)(1) of the
forgery statute.
5
The appellate court reasoned: “Without endorsement, the check could
not be cashed.” Connell, 91 Ill. App. 3d at 334
. In the context of that case,
the court was simply explaining that absent the defendant’s forged
endorsement, that otherwise valid check was not capable of defrauding.
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¶ 45 We observe that the appellate court rejected defendant’s
contention that her endorsement of the bogus check in her own name
was not capable of defrauding. 2011 IL App (1st) 101391-U
, ¶ 24.
Before this court, the parties disagree as to whether a defendant’s
endorsement in his or her own name can render a check capable of
defrauding. However, we deem discussion of this issue unnecessary
because the counterfeit check in the case at bar was capable of
defrauding at its creation without any endorsement, be it forged or
genuine. See People v. Campa, 217 Ill. 2d 243, 269-70
(2005)
(reviewing court will not decide nonessential issues or render
advisory opinions).
¶ 46 C. Sufficiency of the Evidence
¶ 47 In her appellant’s brief before this court, defendant argues that,
beyond the issue of her endorsement, “there was no evidence
presented at trial” that she actually created the check. The State
counters that “ample circumstantial evidence established that
defendant created the fraudulent check, and the trial court never stated
that it found defendant guilty of [making the check] based solely on
her endorsement.”
¶ 48 The due process clause of the fourteenth amendment to the United
States Constitution safeguards an accused from conviction in state
court except upon proof beyond a reasonable doubt of every fact
necessary to constitute the crime charged. Jackson v. Virginia, 443 U.S. 307, 315-16
(1979); In re Winship,397 U.S. 358, 361-64
(1970);
People v. Cunningham, 212 Ill. 2d 274, 278
(2004). Where a criminal
conviction is challenged based on insufficient evidence, a reviewing
court, considering all of the evidence in the light most favorable to
the prosecution, must determine whether any rational trier of fact
could have found beyond a reasonable doubt the essential elements
of the crime. Jackson, 443 U.S. at 318-19
; People v. Cooper,194 Ill. 2d 419, 430-31
(2000). This standard of review “gives full play to the
responsibility of the trier of fact fairly to resolve conflicts in the
testimony, to weigh the evidence, and to draw reasonable inferences
from basic facts to ultimate facts.” Jackson, 443 U.S. at 319
; accord
People v. Howery, 178 Ill. 2d 1, 38
(1997). Therefore, a reviewing
court will not substitute its judgment for that of the trier of fact on
issues involving the weight of the evidence or the credibility of the
witnesses. Cooper, 194 Ill. 2d at 431
. Although these determinations
by the trier of fact are entitled to deference, they are not conclusive.
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Rather, a criminal conviction will be reversed where the evidence is
so unreasonable, improbable, or unsatisfactory as to justify a
reasonable doubt of the defendant’s guilt. People v. Wheeler, 226 Ill. 2d 92, 115
(2007); People v. Ortiz,196 Ill. 2d 236, 259
(2001). This
same standard of review applies regardless of whether the defendant
receives a bench or jury trial. Cooper, 194 Ill. 2d at 431
.
¶ 49 This court has recognized that a criminal conviction may be based
solely on circumstantial evidence. Wheeler, 226 Ill. 2d at 120
; People
v. Hall, 194 Ill. 2d 305, 330
(2000). However, the same standard of
review applies whether the evidence is direct or circumstantial.
Wheeler, 226 Ill. 2d at 116-18
; Cooper,194 Ill. 2d at 431
. The State
argues: “Based on all of the evidence it was more than reasonable for
the trial court to deduce that defendant made or altered the check.”
We disagree.
¶ 50 We have detailed the evidence adduced at trial. The trial court
concluded that the testimony of defendant and her cousin Ahmad was
incredible and unworthy of belief. The court found that defendant was
an educated police officer with a sister who had a criminal record of
similar crimes. Under these circumstances, the trial court rhetorically
asked why defendant did not attempt to determine the legitimacy of
the check by: arranging a meeting with the purported attorneys, or
consulting with another attorney; or showing the check to the credit
union prior to deposit. Because defendant did not do any of these
things, the trial court reasoned: “Quite frankly, my mother gave me
the check excuse just doesn’t hold water.” The court found defendant
guilty on all counts, including forgery by making the check.
¶ 51 Our analysis of this issue “does not necessitate a point-by-point
discussion of every piece of evidence as well as every possible
inference that could be drawn therefrom.” Wheeler, 226 Ill. 2d at 117
.
The totality of the evidence pertains to the delivery of the check, as
prohibited by subsection (a)(2) of the forgery statute. Indeed,
defendant does not contest that she delivered the check, which
supported her attempted theft conviction. However, wholly absent
from this record is any evidence that defendant made the check as
prohibited by subsection (a)(1). Indeed, Detective Roman, the
investigating officer, testified that he did not find any evidence that
defendant created the settlement letter or the check. Proof of forgery
by making “must be connected with the person charged or there is a
failure of proof.”People v. Ciralsky, 360 Ill. 554, 560
(1935).
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¶ 52 Of course, the State bears the burden of proving beyond a
reasonable doubt each element of a charged offense and the
defendant’s guilt. Victor v. Nebraska, 511 U.S. 1, 5
(1994); Howery,
178 Ill. 2d at 32
; People v. Tye,141 Ill. 2d 1, 15
(1990). In the case
at bar, there was an entire failure of proof upon the essential element
that defendant created the check. Defendant’s conviction of forgery
by making (720 ILCS 5/17-3(a)(1) (West 2006)) must be reversed.
¶ 53 When a reviewing court reverses a conviction based on
evidentiary insufficiency, the constitutional prohibition against double
jeopardy (U.S. Const., amends. V, XIV; Ill. Const. 1970, art. I, § 10)
precludes the State from retrying the defendant. Therefore, “the only
proper remedy is a judgment of acquittal.” Williams, 239 Ill. 2d at 133
; accord Tibbs v. Florida,457 U.S. 31, 40-42
(1982); Burks v.
United States, 437 U.S. 1, 11-18
(1978); People v. Mink,141 Ill. 2d 163, 173-74
(1990).
¶ 54 In sum, defendant’s sentencing order reflects that she was
convicted as charged in counts I through VI. We reverse defendant’s
conviction of forgery by making the check as charged in count I, as
well as that part of the appellate court judgment that upheld the
conviction. As earlier noted, the appellate court vacated the
conviction of forgery by delivery in count II under one-act, one-crime
principles, and the official misconduct convictions as charged in
counts IV, V, and VI. Accordingly, we modify defendant’s sentencing
order here, to reflect her sole remaining conviction of attempted theft
as charged in count III.
¶ 55 III. CONCLUSION
¶ 56 For the foregoing reasons, the judgment of the appellate court is
affirmed in part and reversed in part, and the judgment of the circuit
court of Cook County is affirmed in part and reversed in part.
¶ 57 Appellate court judgment affirmed in part and reversed in part.
¶ 58 Circuit court judgment affirmed in part and reversed in part.
¶ 59 JUSTICE THOMAS, specially concurring:
¶ 60 I agree with the conclusions of the majority in the first two
sections of its analysis and its reasons for reaching those conclusions.
The question of whether the evidence was sufficient to establish that
defendant committed the offense of forgery by making the check
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under count I was not moot, and a conviction for that offense cannot
rest solely on the fact that a defendant endorses a forged check.
¶ 61 I also agree with the majority’s ultimate conclusion rejecting the
State’s argument that the circumstantial evidence presented in this
case was sufficient to prove beyond a reasonable doubt that defendant
created the fraudulent check. I write separately, however, because I
would reach this conclusion based on somewhat different reasoning
than that employed by the majority.
¶ 62 Section 17-3(a)(1) and (2) of the forgery statute provides in
relevant part that “(a) A person commits forgery when, with intent to
defraud, he knowingly: (1) makes or alters any document apparently
capable of defrauding another ***; or (2) issues or delivers such
document knowing it to have been thus made or altered.” 720 ILCS
5/17-3(a)(1), (2) (West 2006). Following a bench trial, defendant was
convicted of, among other offenses, forgery by making the check
under section 17-3(a)(1) (count I), forgery by delivery of the check
under section 17-3(a)(2) (count II), and attempted theft by delivering
the check (count III). The appellate court subsequently vacated count
II under one-act, one-crime principles, as it was based on the same act
of delivery as the greater offense of attempted theft under count III.
2011 IL App (1st) 101391-U
, ¶ 32. The appellate court affirmed
defendant’s convictions under counts I and III. Id. ¶ 41
.
¶ 63 The relevant facts in the record and the reasonable inferences
from those facts indicate the following. Defendant presented a forged
check to the Chicago Patrolman’s Federal Credit Union (credit union)
in the amount of $1 million for deposit on August 31, 2006.
Defendant gave the teller on duty, Samara Galvan, the check, which
defendant had endorsed. Defendant also presented a deposit slip, two
forms of identification, and an affidavit claiming that the check was
from the settlement of a lawsuit against Six Flags Great America
(Great America).
¶ 64 Galvan knew defendant from her prior contact with her over an
incident that occurred a few weeks earlier at the credit union in early
August of 2006. Galvan recalled that with respect to that incident,
defendant had claimed that a fraud had been committed on her
account by someone who had improperly withdrawn money from it.
It turned out that the money was withdrawn by defendant’s sister,
Abeni Brown, who was “posing” as defendant. Galvan was also the
teller for that transaction. She noted that the person posing as
defendant wore a wig and glasses. Galvan further noted that Abeni
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had joint ownership of the account. It was never explained at trial
why Abeni would have had to pose as defendant, given that Abeni
had the right to access the account and take money out in her own
name. At any rate, Galvan opened up a new account for defendant and
resolved that she would recognize defendant in the future.
¶ 65 Galvan was immediately suspicious of the $1 million check when
defendant presented it on August 31. Galvan showed the check to her
supervisor, Maria Villasenor. Villasenor briefly glanced at the check,
but did not notice the amount. She directed Galvan to process the
check, but to put a hold on it. After making a copy of the affidavit
given to her by defendant, Galvan walked back to the teller window
to where defendant was still standing. Defendant was now on her cell
phone. Defendant asked if anything was wrong, and Galvan told here
that “everything was okay.” Defendant then pretended that she had
her lawyer on the phone. Defendant told Galvan that Galvan could
speak to the lawyer on the phone “if there were any problems.”
¶ 66 The next morning, on September 1, 2006, it was brought to
Villasenor’s attention that the credit union’s scanner could not read
the check because it was missing one of the nine digits required for
a valid routing number. At that time, Villasenor noticed for the first
time that the check amount was for $1 million. She could tell from
the lines, color and texture, and the lack of a full routing number that
it was not a good check and that there was a chance it was counterfeit.
Villasenor then called Chase Bank and verified over the phone that
the check was forged. She then placed a permanent hold on
defendant’s account and sent mail notice to defendant informing her
of the hold. Villasenor explained at trial that if she had not placed a
hold on the account, defendant would have been able to get $5,000
from the account after two business days as a result of the available
balance that would have resulted from the deposit of the check.
¶ 67 On September 7, 2006, defendant called Villasenor to ask what
the letter meant. During the course of that conversation, defendant
told Villasenor a series of lies. Defendant said she had sued Great
America and had won the lawsuit, that someone from Great America
was supposed to call the credit union to let it know this was a good
check, that Chase Bank would call the credit union, and finally that
defendant would have her lawyer call to let the credit union know that
it was a good check.
¶ 68 Villasenor talked to defendant again on the phone on September
11, 2006, after the credit union’s accounting department notified
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Villasenor that the check was indeed counterfeit. Villasenor informed
defendant that Chase Bank had not honored the check and that the
credit union would have to debit defendant’s account. Defendant
responded to this news with more lies. She said that she was “going
to have to sue Great America again then.” She also claimed that the
check was dishonored because Great America had just filed for
bankruptcy. When Villasenor asked defendant when she had learned
this, defendant said that she had found this out that morning.
¶ 69 Chicago Police Detective Francisco Roman conducted the
investigation of the forged check. Roman contacted the chief financial
officer of Great America, who confirmed that there were never any
checks issued to defendant or any of her family members by the
company. Moreover, Great America was never sued by defendant or
any of her family members. Detective Roman did confirm, however,
that Abeni Brown is an actual person and is the sister of defendant.
Roman found that Abeni had two case reports in the police
department database. Both incidents involved Abeni committing
identity theft against defendant. Roman testified at trial that he had
not gathered any evidence to indicate that defendant actually created
either the forged check or the affidavit claiming that the check was
the result of a lawsuit against Great America. Detective Roman
admitted that he did not contact Abeni in connection with this case.
He noted that there was an investigative alert out for her, but no one
from the police department had spoken to her.
¶ 70 The majority concludes that based on the evidence there was an
“entire failure of proof upon the essential element that defendant
created the check.” Supra ¶ 52. The majority claims that the totality
of the evidence pertains to the delivery of the check, and it finds it
significant that Detective Roman, as the investigating officer, did not
gather any direct evidence that defendant created the settlement check
or affidavit. Supra ¶ 51. The majority finds that its “analysis of this
issue ‘does not necessitate a point-by-point discussion of every piece
of evidence as well as every possible inference that could be drawn
therefrom.’ ” Supra ¶ 51 (quoting People v. Wheeler, 226 Ill. 2d 92, 117
(2007)).
¶ 71 The majority’s quote from Wheeler needs to be placed in the
proper context. In that case, this court agreed with the defendant’s
contention that the requirement that “all of the evidence is to be
considered in the light most favorable to the prosecution” means that
appellate review must include consideration of all of the evidence, not
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just the evidence convenient to the State’s theory of the case.
(Emphasis in original.) Wheeler, 226 Ill. 2d at 117
. Wheeler
continued on to clarify as follows:
“However, the mandate to consider all the evidence on
review does not necessitate a point-by-point discussion of
every piece of evidence as well as every possible inference
that could be drawn therefrom. To engage in such an activity
would effectively amount to a retrial on appeal, an improper
task expressly inconsistent with past precedent. [Citation.]
Indeed, this court has stated that even ‘the trier of fact is not
required to disregard inferences which flow normally from the
evidence and to search out all possible explanations consistent
with innocence and raise them to a level of reasonable doubt.’
[Citation.] We have also stated that ‘[t]he trier of fact need
not *** be satisfied beyond a reasonable doubt as to each link
in the chain of circumstances. [Citation.] Accordingly, this
court is not required to search out all possible explanations
consistent with innocence or be satisfied beyond a reasonable
doubt as to each link in the chain of circumstances. On the
contrary, we must ask, after considering all of the evidence in
the light most favorable to the prosecution, whether the record
evidence could reasonably support a finding of guilt beyond
a reasonable doubt.” Wheeler, 226 Ill. 2d at 117-18
.
¶ 72 Thus, our standard of review requires that we consider all of the
evidence in the light most favorable to the prosecution and determine
whether that evidence could reasonably support a finding of guilt
beyond a reasonable doubt. I would also note that “[i]n forgery cases,
proof must often be by circumstantial evidence.” People v. Baylor, 25 Ill. App. 3d 1070, 1074
(1975) (citing People v. Church,366 Ill. 149, 158
(1937)). This is because forgery is not a crime that is committed
openly and notoriously. See People v. Einstein, 106 Ill. App. 3d 526, 532
(1982). It is by nature secretive, and it is therefore necessary that
certain elements be proved from logical deductions from the facts and
evidence. Id.
Moreover, it is well established that the intent to defraud
may be inferred from the facts and circumstances surrounding the
transaction. People v. Bailey, 15 Ill. 2d 18, 23-24
(1958); People v.
Kunce, 196 Ill. App. 3d 388, 391
(1990).
¶ 73 In the present case, there is no question that the circumstantial
evidence was sufficient to show that defendant had an intent to
defraud in connection with the forged check. Defendant does not
-19-
contest the trial court’s findings of guilt under counts II and III
(forgery by delivering the check and attempted theft by delivering of
the check), which necessarily established that she knew the check she
deposited was not made by the authority of Bryan Douglas.
Moreover, she told a series of lies in connection with the forged
check to various credit union employees and pretended to talk with
an attorney on the phone that could clear up any problems with the
check. It was for the trial judge as the trier of fact in this case to
determine the credibility of the witnesses and draw reasonable
inferences from the facts. The trial judge reasonably determined that
defendant’s statements were of a person trying to hide her guilt of the
forgery and that defendant’s witnesses were not credible.
¶ 74 Having said that, however, I conclude that the evidence was not
sufficient to prove defendant guilty of forgery under count I (the
making of the check) when looking at all of the facts and
circumstances of this case. My conclusion would likely have been
different had this been a simple case of defendant claiming to have
won a lawsuit on her own behalf and presenting a settlement check
payable to herself. In such a case it may have been quite reasonable
for the trier of fact to conclude that the circumstances were sufficient
to show that defendant must have made the check. I do not believe it
would have been necessary in such a case for the State to prove the
making of the check, as defendant suggests, by introducing more
concrete evidence, such as a digital image of the check on defendant’s
computer or evidence that defendant had made other copies at home.
I would also not find it conclusive that the detective assigned to the
case could find no such evidence, especially where there is no
indication that a search of defendant’s home was ever conducted.
¶ 75 Here, the problem with the State’s case, then, is that other
undisputed evidence negated the otherwise circumstantial evidence
that might have indicated that defendant must have made the check.
It was undisputed that the affidavit presented to the credit union by
defendant in connection with the check indicated that it was for a
purported lawsuit that claimed that defendant’s sister, Abeni, was the
plaintiff. It was uncontested that Abeni was an actual person, was
defendant’s sister, and had a history of fraud and identity theft. It was
also uncontested that police did not question Abeni or otherwise
investigate her possible role in the incident. Moreover, defendant was
not charged with forgery in the making of the check based on an
accountability theory. Cf. Kunce, 196 Ill. App. 3d at 391
(forgery may
-20-
be charged on an accountability theory, which may be proved by
circumstantial evidence). Under these circumstances, a reasonable
doubt remains as to who actually created the $1 million forged check
that defendant ultimately delivered with the intent to defraud.
¶ 76 Accordingly, I agree with the majority’s decision to reverse
defendant’s conviction as charged in count I for the making of the
check and to modify the sentencing order to simply reflect a
conviction for attempted theft as charged in count III.
¶ 77 JUSTICE KILBRIDE joins in this special concurrence.
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