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April 29, 1994


Appeal from the Circuit Court of Cook County. Honorable Shelia O'Brien, Judge Presiding.

McNULTY, Gordon, Cousins

The opinion of the court was delivered by: Mcnulty

JUSTICE McNULTY delivered the opinion of the court:

Defendant Angela Murray was convicted after a bench trial of theft in violation of section 16-1(a)(1)(A) of the Criminal Code (Ill. Rev. Stat. 1989, ch. 38, par. 16-1(a)(1)(A), now 720 ILCS 5/16-1(a)(1)(A)(West 1992)); forgery in violation of section 17-3(a)(2) (Ill. Rev. Stat. 1989, ch. 38, par. 17-3(a)(2), now 720 ILCS 5/17-3(a)(2) (West 1992)); and unlawful use of a credit card in violation of section 8 of the Credit and Debit Card Act (Ill. Rev. Stat. 1989, ch. 17, par. 5921, now 720 ILCS 250/8 (West 1992)). She was sentenced to two years' probation and this timely appeal followed. We affirm in part, reverse in part and remand for resentencing.

On November 29, 1991, the day after Thanksgiving, a man and a woman bought a leather coat from Ms. Joan Fredricksen, a salesperson from a J.C. Penney department store in Golf Mill Shopping Center in Illinois. The woman presented a charge plate in the name of Anne Gooch. After checking with the credit department Ms. Fredricksen charged the sale to that account.

On January 3, 1992, Angela Murray was charged with theft, theft by deception, forgery and unlawful use of a credit card arising from the purchase of the leather coat. The charge of theft by deception (Ill. Rev. Stat. 1989, ch. 38, par. 16-1(a)(2)(A), now 720 ILCS 5/16-1(a)(2)(A) (West 1992)), was dismissed before trial.

Ms. Fredricksen was called to testify by the State at defendant's trial. On direct examination she testified that she had worked from 5 p.m. to 9 p.m. on November 29, 1991. She stated that between the hours of 6 p.m. and 9 p.m., a young couple entered the coat department and quickly picked out an expensive leather coat with a fur collar. She identified defendant Angela Murray as the woman who had purchased the coat on November 29, 1991.

Ms. Fredricksen further testified that she talked to defendant as she was processing the transaction and that defendant handed her a J.C. Penney charge card to purchase the coat. When Ms. Fredricksen entered the charge card into the register, it indicated that the account was new. She then asked defendant for some identification and defendant could produce nothing but the J.C. Penney charge card with the name "Anne Gooch" on it. Ms. Fredricksen called a store manager to ask if the credit card could be accepted for the purchase without other identification. This manager referred her to another manager who, in turn, referred her to the credit department. A credit department representative told Ms. Fredricksen to ask defendant for her address. Ms. Fredricksen did this and defendant responded by reciting a correct address but an incorrect telephone number. Ms. Fredricksen further stated that when she informed defendant that the telephone number was incorrect defendant then gave another telephone number. The representative from the credit department told Ms. Fredricksen to accept the credit card. Ms. Fredricksen then completed the transaction and gave defendant the coat. Ms. Fredricksen also testified that she wrote the address and the two telephone numbers on the sales receipt and watched defendant sign the name "Anne Gooch" on the sales slip.

On cross-examination Ms. Fredricksen testified that the J.C. Penney store is a high volume store and that she may see dozens of customers every day. She further testified that November 29, 1991, was not a busy day in the coat department and that the entire transaction with defendant lasted 15 to 20 minutes. In response to defense counsel's question about the hair color of the woman who had allegedly illegally purchased the coat she stated: "I still see her face in my mind from that night. It was black." Ten days after the event, however, she spoke with a Evanston, Illinois, police officer who reported that Ms. Fredricksen did not know the age of the woman, her hair color, her eye color or her complexion. She only knew the woman was black, husky, and about 5 feet 7 inches tall.

On redirect examination the State asked Ms. Fredricksen: "Of all the thousands of transactions that you handle as you have said, how is it that you recall this one?" and Ms. Fredricksen replied: "Because I had a great suspicion and I could just see their faces. I went home that night and I said they shouldn't have let those people buy that coat."

Mr. Charles Stokes testified for the State. He was a loss prevention manager for J.C. Penney and had investigated the transaction at issue in this case. To determine if J.C. Penney had been paid for the transaction, he had contacted the fraud department at the J.C. Penney regional credit center in Glenview, Illinois, which is not the location where defendant had purchased the coat. Mr. Stokes spoke with an agent at the credit center and that agent accessed the computer records of the account that J.C. Penney had charged to record the purchase of the leather coat. According to Mr. Stokes the agent then made a printout of the computer records and sent a facsimile to him.

The defense objected to the admission of Mr. Stokes' testimony concerning the computer generated record and to the admission of the record itself on the ground that a proper foundation had not been laid. In response to this objection, the State adduced further testimony from Mr. Stokes that J.C. Penney maintains its records as a matter of ordinary business practice on a computer. He testified that when he wants to access a record or get copies of a record he submits a request to an agent at the regional credit center in Glenview, Illinois. He is familiar with the entries and the meanings of computer printouts. Mr. Stokes testified as to the process of record retention after each transaction made at a J.C. Penney store.

Continuing his foundational testimony, Mr. Stokes testified that, although he was not a computer programmer and had not programmed the computer equipment used by J.C. Penney, he was familiar with the type of computer equipment used by J.C. Penney in maintaining its record keeping system. He explained the two types of computer systems used by J.C. Penney for credit card transactions. J.C. Penney uses IBM and National Cash Register (NCR) computers for credit card transactions. Mr. Stokes also testified that the computer records for credit card transactions are generated by sales clerks using NCR cash registers at the point of purchase. This data was part of the information returned from Glenview, Illinois, and sent by facsimile to him for use at trial. He did not testify as to any knowledge of the computers in Glenview and the agent from Glenview who retrieved the records requested by Mr. Stokes and sent him a facsimile of them did not testify at trial. He also testified that J.C. Penney employees do rely upon the data recorded in the computer system. Based upon this testimony the court ruled that Mr. Stokes' testimony had established the reliability of the computer generated record and that the facsimile of this record and Mr. Stokes' testimony regarding it would be admitted into evidence. This document was admitted as People's exhibit 3 in the trial court and the State filed a supplemental common law record containing this exhibit pursuant to this court's order of October 4, 1993.

Mr. Stokes, who had no personal knowledge of either the transaction or the account, then testified as to the contents of exhibit 3 which indicated that J.C. Penney had not been paid for the transaction described in exhibit 3 and had ultimately charged it ...

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