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12/30/88 the People of the State of v. Willie Nearn

December 30, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

WILLIE NEARN, SR., ET AL., DEFENDANTS-APPELLANTS



Before evidence may be admitted under the modus operandi exception to the rule, "a strong and persuasive showing of similarity" between the crime charged and the defendant's other crime must be shown. (People v. Taylor (1984), 101 Ill. 2d 508, 463 N.E.2d 705.) But as the Taylor court pointed out, the crimes need not be identical, and dissimilarity will always exist between independent crimes. We believe that sufficient points of similarity existed between the Rolek and Lang crimes: Both were prior customers of Central Heating; both were elderly; both jobs involved repairs of basement sewer pipes; both involved acts of sabotage; both contracts were written on Central Heating forms; both involved LaGace and Norton, who used the same name, "Stan Lubanski," in both; and both were for $50,000. In addition, both occurred within a short period of time. Therefore, the trial Judge did not abuse his discretion by admitting evidence of the Lang crime. For the same reasons, we believe the evidence was admissible to show a general scheme or plan.

APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION

533 N.E.2d 509, 178 Ill. App. 3d 480, 127 Ill. Dec. 637 1988.IL.1927

Appeal from the Circuit Court of Cook County; the Hon. Fred G. Suria, Judge, presiding.

APPELLATE Judges:

JUSTICE EGAN delivered the opinion of the court. HARTMAN, P.J., and SCARIANO, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE EGAN

Willie Nearn, Sr., Ronald Norton and Willie Nearn, Jr., were indicted for criminal damage to the property of Rose Rolek (Rolek), conspiracy to commit criminal damage to property of Rolek and conspiracy to commit theft from Rolek. Willie Nearn, Sr. (Nearn), was tried by a jury, and Ronald Norton (Norton) and Willie Nearn, Jr., were tried by the court. The court found Willie Nearn, Jr., not guilty and Ronald Norton guilty; the jury found Willie Nearn, Sr., guilty. The trial Judge merged the offenses of criminal damage to property and conspiracy to commit criminal damage to property and sentenced Nearn to a concurrent six-year term of imprisonment and fined him $2,595. He sentenced Norton to a four-year term and fined him $795.

Although the defendants raise no question about the sufficiency of the evidence, a recitation of a substantial part of the evidence is required for an understanding of Nearn's argument that certain evidence was inadmissible.

The defendants were convicted of what is commonly referred to as home repair fraud, consisting of sabotaging a home's sewer system and then charging the elderly owner an exorbitant fee for replacing the system.

Arthur LaGace testified pursuant to a plea agreement. He was a former police officer and in 1982 pleaded guilty to auto theft and bond jumping and was sentenced to 3 1/2 years' imprisonment. Before and after his release from prison in 1983 he worked in the air-conditioning business. In July 1984, he was working at Supreme Heating, allegedly owned by Nearn and Peter Lewis. Supreme Heating was located at 6015 West Belmont. Although he had not worked for Nearn until this time, he knew that Nearn was the owner of Central Heating and Air-Conditioning located at 4842 West Diversey Avenue in Chicago.

In early July 1984, there was a meeting at Supreme Heating with him, his brother William, Nearn, Norton, Bob Mathis and Debbie Moorman. Nearn stated that "we were going into the plumbing business." Nearn also said there would be certain "special customers" who would be charged between $20,000 and $50,000. The plan involved deliberate sabotage of the sewer system, digging up the basement floor and selling the customer a complete sewer line.

LaGace was to be the "set man," a person who goes to the premises, finds a problem or creates one and then calls the "closer." A "closer" is the salesman who explains the problem to the customer, arranges the contract and collects the money. Nearn and Lewis agreed to split the jobs equally, one job would be closed by Mathis and the other by Norton. Mathis had worked for Nearn at Central Heating and came with him to Supreme Heating. At the time of the meeting, Norton was working for both Nearn and Lewis but had previously been working just for Lewis. All present participated in the Discussion; Norton asked who the "closer" would be. When LaGace told those present he did not know anything about plumbing and, therefore, did not know how to sabotage a system, Mathis explained that all he had to do was drop a few pieces of wood down a roof stack pipe and that would do the job.

A few days after this meeting Nearn told Norton and LaGace that Central Heating contracts should be used for the jobs. Later, at another meeting at Supreme Heating's office, Nearn told LaGace that stuffing garbage bags into the clean-out drain would cause the toilet to overflow and that this method was to be used if the board-down-the-pipe method was not available.

On September 6 or 7, 1984, LaGace and his brother William went to the residence of Rolek. After cleaning the furnace he told her that repairs were needed to her chimney flue pipe and that he would have to come back the next day, because he did not have cement with him.

On Saturday, September 8, LaGace stopped at the Supreme Heating office and told Norton to be available because he (LaGace) was going to "set" the job. That arrangement had been discussed between them several days before. LaGace and his brother William then returned to Rolek's home with cementing equipment, a wrench and garbage bags, and began mixing cement in the basement. When Rolek told them that her toilet did not flush properly, LaGace and Rolek went upstairs to look. LaGace told his brother that he was going to the store to buy a part for the toilet and instructed him to stuff the plastic garbage bags down the clean-out drain. Before leaving, LaGace called Norton at Supreme Heating and told him that the job was ready and to come over to the Rolek home.

When he returned from the store, LaGace attempted to repair the toilet, but it overflowed. LaGace called Supreme Heating and was told that Norton was en route. Norton arrived about 30 minutes later and introduced himself as "Stan, the plumber." Norton instructed LaGace to jam some clay, which had been saved from a previous job, into the three-inch floor drain and pour water over the basement floor. Norton then showed Rolek the basement floor, told her that the tiles were broken and that the floor would have to be torn up to make repairs. Norton filled out a blank order form and wrote in the name of Central Heating on the top. The order stated that the job cost $50,000. Norton had to "brow beat" Rolek into signing the order. Norton signed it as "Stan Lubanski." (A handwriting expert of the Chicago police department would later testify by stipulation that Norton wrote and signed the order.) A work crew arrived and began breaking open the floor. The garbage bags were removed from the drain.

On Monday, September 10, at the Supreme Heating offices, LaGace heard Norton tell Peter Lewis that he did not want to go back to Rolek's home and have her sign a contract or to pick up the money; Norton asked Don Wennersten, an installer, to do it.

Rolek testified that she was 82 years old. Her building is a two-flat; she lives on the first floor and her sister-in-law on the second. She testified to prior contracts she had with Central Heating, such as the purchase of three furnaces, two within a three-year period, the purchase of a hot water heater, and electrical wiring and foundation work done to repair an alleged structural deficiency. She did not testify that she was not satisfied with any of the work performed with the exception of some attic work. She said that LaGace represented that he was a police officer/building inspector who came to inspect her furnace. She identified the work order that Norton persuaded her to sign.

The following Monday she went to Citicorp Savings and obtained a $25,000 check for down payment on the plumbing job. While there she had a conversation with Joyce Narducy, a Citicorp employee, and told her that she needed the money as a down payment for a plumbing job. Narducy alerted James Ryan, a Chicago police officer and Citicorp security guard, who then notified the Chicago police department.

The police went to the Rolek home to investigate and eventually placed eight persons under arrest. They were the seven workmen who were in the basement digging up the floor and Don Wennersten, who arrived later with the formal contract. He was to get Rolek's signature on the contract and collect the fee.

A plumbing expert, George Holmes, testified that he went to the Rolek home to examine the basement. His company replaced her entire sewer system at a cost of $1,700 to $1,800, and he estimated that a complete system would cost between $3,000 and $4,200.

Pauline McCormick, a former Central Heating employee, testified under a grant of immunity. Her duties included answering telephones and filling out work orders and customer order cards. She made some of the entries on Rolek's card at Central Heating. In the summer of 1984 she was employed by Supreme Heating. Nearn told her that he and Lewis were going to be partners. On or about September 8, she overhead LaGace and others laughing about the Rolek job. On September 10, she overheard Nearn ask Wennersten to "do him a favor." Later that same day Wennersten called her from jail and asked her to tell Nearn that arrests had been made on the Rolek job. She also testified that, at Nearn's request, she wrote and endorsed checks for Central Heating while working at Supreme Heating.

Fred Frankston, an employee of Parkway Bank and Trust Company, testified that his record showed that Nearn was the sole owner of Central Heating. He also testified that a check drawn on the Central Heating account was made out to "Stan Lubanski" on September 7 and was subsequently cashed at a currency exchange.

Don Wennersten also testified under a grant of immunity. He had been a friend of Nearn's since 1969 and worked for him since 1978 or 1979 up to September 1983. He had known Norton for 14 to 15 years. On September 8, Nearn told him he would have work for him on Monday, September 10. On that date Norton asked Wennersten to do him a favor and get the Rolek contract signed and to pick up the payment. Wennersten saw Norton sign "Stan Lubanski" on a Central Heating contract for Rolek. When he arrived at the Rolek home the police were there. He did not give the contract to the police; instead, he placed it in his shoe, where it remained until after he got out of ...


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