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09/16/97 PEOPLE STATE ILLINOIS v. RHONDA L. BOYD

September 16, 1997

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
RHONDA L. BOYD, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Du Page County. No. 95--CF--0953. Honorable Ronald B. Mehling, Judge, Presiding.

Rehearing Denied October 22, 1997. Released for Publication October 22, 1997.

The Honorable Justice Inglis delivered the opinion of the court: Bowman and Hutchinson, JJ., concur.

The opinion of the court was delivered by: Inglis

The Honorable Justice INGLIS delivered the opinion of the court:

Defendant, Rhonda L. Boyd, was charged by indictment with one count of deceptive practices (720 ILCS 5/17--1(B)(d) (West 1994)). Following a bench trial, the trial court found defendant guilty, ordered her to pay $3,541.66 in restitution, and sentenced her to 90 days' periodic imprisonment and two years' probation. We affirm.

On January 24, 1995, defendant opened a checking account for her business, Nutrition Plus, Inc., at the Downers Grove branch of Superior Bank, FSB (Superior). In the days that followed, defendant issued and deposited into the Superior account three checks drawn on Nutrition Plus' NAB Bank account. On the morning of January 30, 1995, using money withdrawn from the Superior account, defendant obtained three cashier's checks for $1,668, $2,211, and $31,000, respectively. Later that day, after learning that Nutrition Plus' NAB account was closed, Superior ordered its security manager, John Simmons, to retrieve the cashier's checks. Mr. Simmons located defendant at Nutrition Plus' Naperville office, retrieved one ($31,000) of the three cashier's checks, and informed defendant that Superior had closed Nutrition Plus' account and that defendant was not to write any more checks on that account.

On March 29, 1995, defendant wrote a $21,500 check drawn on the closed Superior account and delivered that check to NBD Bank's senior teller, Francine Podlasek, for deposit into Nutrition Plus' NBD account. Shortly after defendant deposited the $21,500 check, NBD learned that the Superior account was closed. NBD reported the transaction to the local police.

Detective Kenneth Boehm of the Woodridge police department called defendant to discuss NBD's allegations. During the conversation, defendant admitted to depositing the $21,500 check into the NBD account and to knowing that Nutrition Plus' Superior account was closed when she made the deposit. Defendant explained to Detective Boehm that the deposit had been a mistake, that she had been expecting an insurance settlement that did not materialize, and that she intended to make restitution to NBD. Detective Boehm gave defendantone week to make the restitution. During that week, defendant did not contact Detective Boehm. Detective Boehm then made several attempts to contact defendant without success.

On May 5, 1995, Detective Boehm arrested defendant and charged her with deceptive practices (720 ILCS 5/17--1(B)(d) (West 1994)). Following her arrest, defendant executed a written statement in which she again admitted to depositing the $21,500 check into the NBD account.

On March 28, 1996, defendant was found guilty of deceptive practices (720 ILCS 5/17--1(B)(d) (West 1994)). The trial court denied defendant's motion in arrest of judgment, and this appeal followed. On appeal, defendant challenges the sufficiency of the indictment and the sufficiency of the evidence. Defendant does not question the propriety of her sentence.

We turn to defendant's first argument on appeal concerning the sufficiency of the indictment. Section 17--1(B) (d) of the Criminal Code of 1961 (Criminal Code) states that a person commits deceptive practices when, with intent both to defraud and to obtain control over property, she issues or delivers a check "knowing that it will not be paid by the depository." (Emphasis added.) 720 ILCS 5/17--1(B)(d) (West 1994). In defendant's indictment, however, the State alleged that defendant, with the intent to defraud and to obtain control over certain property of NBD, issued a check "knowing said check would not be paid by the depositor." (Emphasis added.) Because the language of the indictment does not mirror the language of the statute, defendant argues that the indictment fails to state an offense and therefore is void.

Defendant's argument is without merit. Where, as here, defendant first attacks the indictment in her motion in arrest of judgment, it is not enough to argue only that the indictment fails to state an offense. Rather, the defendant also must show that the indictment (1) prejudiced her defense preparation, or (2) is so ambiguous as to create the potential for double jeopardy. 725 ILCS 5/116--2(c) (West 1994).

In this case, defendant argues only that the indictment fails to state an offense. Defendant has never claimed that the State's inadvertent use of the word "depositor" prejudiced her defense preparation. Moreover, we do not find that defendant's defense preparation was prejudiced by the indictment's wording. Very early in the trial, defense counsel objected to a series of questions posed to Ms. Podlasek regarding defendant's conduct following the deposit of the $21,500 check. In support of his objection, defense counsel presented two Illinois Appellate Court decisions discussing whether subsequent acts can be used to show intent where the defendant is accused of issuing bad checks in violation of section 17--1(B)(d) of the Criminal Code. In addition, defense counsel stated:

"If she went back to the bank that day, a day later, five weeks later, that conduct simply has nothing to do with whether she is guilty of the offense charged, which is in this particular case the issuing of the check. She is not charged with somehow making the subsequent withdrawal and her intent must be established, Judge, under all of the case law under ...


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