APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. THE HONORABLE EARL E. STRAYHORN, JUDGE PRESIDING.
Released for Publication January 13, 1995.
Cousins, Jr., McNULTY, Murray
The opinion of the court was delivered by: Cousins
JUSTICE COUSINS, JR. delivered the opinion of the court:
On August 27, 1991, the defendant, Billy L. Simpson, was charged with two statutory offenses: (1) theft (Ill. Rev. Stat. 1989, ch. 38, par. 16-1(a)(2) (now codified as 720 ILCS 5/16-1(a)(2) (West 1992))), and financial exploitation of a disabled person (Ill. Rev. Stat. 1989, ch. 38, par. 16-1.3(a) (now codified as 720 ILCS 5/16-1.3(a) (West 1992))). Following a bench trial, the defendant was found not guilty of theft and guilty of financial exploitation of a disabled person. The trial court sentenced the defendant to 30 months probation and 100 hours of community service. On appeal, the defendant contends (1) the trial court erred in finding him guilty beyond a reasonable doubt of financial exploitation of a disabled person, and (2) the statute criminalizing the offense of financial exploitation of a disabled person is unconstitutionally vague.
At trial, the victim, Alana Smith testified in the State's case in chief. She testified that she was 41 years old and that her source of income consists of social security disability checks. She also testified that even though she graduated from Columbia College in Chicago with a degree in Arts and Entertainment Management and once worked on and off as a substitute teacher, she is currently unemployed and suffers from a medical condition known as post-poliosclerosis.
The defendant had been Ms. Smith's insurance agent for five years. In early March 1991, she discussed possible investment and savings options with the defendant for $14,000 which she had recently received. On March 25, 1991, she withdrew that money, in the form of a cashier's check for $14,000, from her bank.
Two days later, she met with the defendant in her home. To that meeting, defendant had brought with him applications and enrollment papers for Prudential Bache's (defendant's employer's) investment program. After discussing investment options with the defendant, she filled out one of the applications, intending to enroll in two separate programs whereby $5,000 would be invested in a high-yield program to mature in 120 days and $9,000 in another program. She signed over the cashier's check to the defendant in exchange for a promissory note signed by the defendant payable to her order for $5,000 that stated both the principal amount due and the interest due. No receipt, however, was given for the $9,000.
In late April 1991, Ms. Smith attempted to contact the defendant because she had not yet received any official documents for her investments. On May 5, 1991, the defendant assured her that the official documents were forthcoming and that there was nothing to worry about. Having not yet received the materials, she again attempted to contact the defendant in June 1991 regarding the same matter. In July, 1991, when they discussed the matter, Ms. Smith inquired as to what had happened to the $9,000 investment and told the defendant that she was becoming concerned because she had not yet received any official documentation in connection with her investments. She also told him that she wanted to withdraw some money from her investment because she had some financial obligations to meet. After Ms. Smith expressed her concerns in this regard, the defendant told her that he would meet with her and bring her the money that she had requested.
On July 12, 1991, the defendant met with Ms. Smith. Although she was expecting to receive the money that she requested, the defendant gave her a Prudential "premium" check for $37 and some odd cents and $80 in cash from out of his pocket. Ms. Smith also had the defendant update the promissory note to reflect the total amount that he had received because she had still not received any official documents in connection with her investment of both the $5,000 and the $9,000.
Becoming very concerned, on that same day, Ms. Smith called Prudential's investigation department and spoke with Barbara Blakeslee. After the conversation, she wrote out a detailed report of everything that had transpired and called her bank, Northern Trust, to ask them to please send her a copy of the $14,000 cashier's check.
On July 15, 1991, the defendant again agreed to meet with Ms. Smith at some future date to return all of her money. He told her that he was applying for a personal loan at a bank in order to pay her back on her investment to Prudential. The defendant, however, never returned the $14,000 which she had entrusted him with, but rather Prudential later reimbursed her with her entire investment in addition to whatever interest would have accrued. Ms. Smith testified that when she signed over the cashier's check to the defendant, she was under the impression that it was going to be invested in a Prudential Bache mutual bonds program and that the defendant never told her that it was a personal loan.
Barbara Blakeslee, an investigator in the Business Practice Unit of Prudential Insurance Company in Chicago, testified that on July, 12, 1991, she received a telephone call from Ms. Smith who expressed some concerns about her insurance agent, the defendant. She told Ms. Smith that, before she could proceed with an investigation, she needed a statement in writing. Miss Blakeslee received such a statement from Ms. Smith about a week later. After receiving the statement, she checked the company records and discovered that Ms. Smith had pre-existing life insurance policies with the company but no recent policies or investments had been opened in her name.
On July 23, 1991, Miss Blakeslee and the district manager met with the defendant at the district office in Tinley Park, Illinois and discussed Ms. Smith's complaint about him. At that meeting, Miss Blakeslee showed the defendant a copy of the check that was given to him by Ms. Smith. When told about the complaint, the defendant stated that he could not understand why Ms. Smith would have gone to the investigation unit to complain about him. When he was asked about the $14,000 investment that Ms. Smith claimed that she had made with him, he stated that it was a personal loan between himself and Ms. Smith and he could not understand why Ms. Smith would come to them about that. He explained that the check that was given to him by Ms. Smith had been endorsed by his wife, Kelly Simpson, and deposited into her account and was spent within 14 days. According to Miss Blakeslee, the defendant told her that no investment application forms had been filled out by Ms. Smith. After being asked by Miss Blakeslee, the defendant sent her a written statement telling her what he could recall about the entire situation.
Miss Blakeslee further testified that she had been employed for 15 years and that she had worked as a salesperson. She described the normal procedure as to what takes place when a client decides to invest in a municipal fund. The client fills out and signs an application form and gives a check made payable to Prudential to the agent. The check along with the application is given to the company and an account is established in the ...