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04/29/97 PEOPLE STATE ILLINOIS v. PHYLLIS HOUSTON

April 29, 1997

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
PHYLLIS HOUSTON, DEFENDANT-APPELLANT.



Appeal from Circuit Court of McLean County. No. 94CM73. Honorable Joseph H. Kelly, Judge Presiding.

Rule 23 Order Redesignated Opinion and Ordered Published nunc pro tunc May 27, 1997. As Corrected September 23, 1997.

Honorable Robert W. Cook, J., Honorable Robert J. Steigmann, P.j. - Concur, Honorable John T. McCullough, J. - Concur. Justice Cook delivered the opinion of the court.

The opinion of the court was delivered by: Cook

JUSTICE COOK delivered the opinion of the court:

Following a jury trial, defendant Phyllis Houston, nee Phyllis Hoback, was found guilty of eight counts of telephone fraud (720 ILCS 365/1(g) (West 1992)) and sentenced to 18 months of conditional discharge. She was ordered to pay restitution of $5,035.06 "to be determined." Defendant appeals, contending that (1) the trial court erred in admitting evidence that defendant applied for phone service in 1989 under the name of "John Houston," where this prior "bad act" was not probative regarding her present offenses; (2) the trial court erred in admitting as business records GTE reports that were generated in preparation for trial; (3) she was not proved guilty beyond a reasonable doubt; and (4) the restitution order must be vacated, because it failed to specify the time and method of repayment. We affirm in part, reverse in part, vacate in part, and remand.

In counts I through IV, defendant was charged with obtaining telephone service from GTE "by using the name of Phyllis Hoback as the party to be billed, knowing that service under the name of Phyllis Houston would be refused." Each of the four months that defendant allegedly received telephone service as Phyllis Hoback (December 1992 through March 1993) was charged as a separate count. In counts V through VIII, defendant was charged with obtaining telephone service "by using the name of Troy Huston [sic], a minor under the age of 17, as the party to be billed, knowing that service under the name of Phyllis Houston would be refused." Troy Houston, whose last name is spelled with two o's, is one of defendant's sons. Each month of service received in Troy's name, from May 1993 to August 1993, was charged as a separate count.

Prior to trial, defendant filed a motion in limine to preclude evidence that she applied in 1989 for phone service under the name of John Houston. Defendant's motion was denied.

At trial, Robert Hanner, an investigator employed in GTE's security department, was the State's sole witness. Hanner began investigating defendant in August 1993 after GTE's billing center sent him records of three unpaid accounts in the names of John Houston, Phyllis Hoback, and Troy Huston. In October 1993, Hanner and another GTE investigator interviewed defendant at her residence. They obtained a written statement from defendant, which was entered into evidence.

In the statement, defendant related that in 1978, she and her family had resided on Center Street in Bloomington, Illinois. Their telephone service at this address was under her husband's name, Roy Houston, Sr. (Roy Sr.). The service was disconnected for nonpayment of bills. In 1989, the family moved to Anchor, Illinois. Defendant's husband instructed defendant to apply for telephone service using the name "John Houston." Defendant and Roy Sr. have a son named John (or Jonathan) Houston, who was 16 years old at the time. Roy Sr. told defendant that he was unable to obtain telephone service in his own name because of his bad debt with GTE. He threatened defendant and her children with bodily harm unless she applied to GTE. She complied. The John Houston account was disconnected in fall 1992 with an unpaid balance of $6,712.73.

In November 1992, shortly after her divorce from Roy Sr., defendant and her children moved to 202 South Prospect, Apartment 105K, Bloomington, Illinois. Defendant applied for telephone service at this address using her maiden name, Phyllis Hoback. She wrote, "when I applied for the telephone in my maiden name, I showed the GTE representative my divorce decree, where I took my maiden name back." The Phyllis Hoback account was disconnected for nonpayment of $2,310.83. Telephone service was reinstated at defendant's address under the name of Troy Houston. Defendant wrote, "I would state that my son Troy applied for the telephone service in his name without my knowledge." The Troy Houston (or "Huston") account was disconnected in August 1993 with an unpaid balance of $2,724.20.

Defendant signed her statement "Phyllis S. Hoback Houston." After signing, defendant offered to pay Hanner $3,000 to settle the accounts. Hanner refused.

Hanner testified that when a potential customer applies for telephone service, GTE runs the customer's name, social security number and prior address through a computer system called the "Recoup." If the Recoup does not reveal a bad debt, GTE will go ahead and establish service. GTE does not ask applicants their age. Hanner assumed that defendant applied for service over the telephone. However, on cross-examination he admitted that he was not present when the applications were made, and he did not know whether the applications were made in person or over the telephone.

Over defendant's objection, the State introduced computer records of the John Houston, Phyllis Hoback, and Troy Huston accounts. These records were generated between August 1993 and October 1993 by Hanner during the course of his investigation. The records indicated that a large number of phone calls were made on the Phyllis Hoback and Troy Huston accounts. One printout showed that the John Houston account was delinquent $6,712.73. According to another printout dated September 17, 1993, the Phyllis Hoback account was delinquent $2,250.83, but someone had handwritten $2,310.83 beneath the first figure. The Troy Huston account was delinquent $2,724.20 as of September 9, 1993, and $2,922.98 as of September 19, 1993. One-time payments of $600 and $200 were credited to the Phyllis Hoback and the Troy Huston accounts, respectively. No other payments were listed.

Defendant testified that her name was Phyllis Suzanne Houston Hoback. She was married to Roy Sr. from 1970 to 1992. She stated that her former husband had constantly threatened and abused her and the children. In 1989, he threatened to kill her if she did not apply for telephone service in the name of John Houston, their son. He was arrested for molesting the children in July 1991 or 1992, and he was currently serving a 48-year prison sentence. Following her divorce, defendant moved to the Prospect Road address in Bloomington, but her former husband continued to ...


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