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People v. Zizzo

November 13, 1998

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
GEORGINA M. ZIZZO, DEFENDANT-APPELLANT.



The opinion of the court was delivered by: Justice Bowman

IN THE COURT OF APPEALS OF THE STATE OF ILLINOIS

Appeal from the Circuit Court of Lake County.

No. 96--CF--2925

Honorable Victoria A. Rossetti, Judge, Presiding.

Defendant, Georgina M. Zizzo, was charged by indictment with felony theft (720 ILCS 5/16--1(a)(2)(A) (West 1996)). After a jury trial, she was convicted, sentenced to 36 months of probation and 12 months of work release, and ordered to pay $55,000 in restitution. Defendant now appeals, arguing that the State did not prove her guilty beyond a reasonable doubt. We affirm.

I. FACTS

The State's first witness, Carol Carl, testified that, in May 1996, while updating her family's financial records, she discovered a series of unauthorized automatic teller machine (ATM) withdrawals from her account at First Bank of Highland Park (the Bank). Carl immediately called the Bank to report the unauthorized withdrawals, and the Bank's vice-president invited her in to review the matter. After reviewing her records at the Bank, Carl contacted the police and filed a report. The Carls' account records established that the unauthorized ATM withdrawals were made between October 1995 and May 1996 and totaled $62,072.86.

The State next called Billie Carr. Carr testified that he was a good friend of defendant, whom he had met in the summer of 1995. In September 1995, shortly after defendant began working at the Bank, Carr and defendant opened a joint checking account at the Bank. In October 1995, defendant told Carr to go to the Bank because someone named Barb Kubas wanted him to do Kubas a favor. Carr called Kubas, and Kubas asked Carr to come to the Bank. Carr went to the Bank alone and found Kubas at her desk. Kubas walked Carr over to the ATM, opened a file folder, and handed Carr an ATM card bearing the name "Daryl Simson." Asked whether he knew where the name "Daryl Simson" had come from, Carr responded that the name was on the ATM card when he arrived. After using the ATM card to make three withdrawals totaling $500, he left the ATM card and some of the cash by Kubas's car.

Carr went on to testify that, in the spring of 1996, he called Barb Kubas, whom he had now given the nickname, "Tampa," to find out whether he could obtain a second ATM card. Kubas told Carr to "come back in and get another card. When he went to pick up the second ATM card, Carr was accompanied by someone who was driving defendant's car. Carr did not speak with defendant about what had happened to the first ATM card, and defendant did not accompany Carr when he picked up the second ATM card. On June 4, 1996, Carr returned to the Bank to pick up a third ATM card because the ATM would no longer accept the second card. On this occasion, defendant was with him. Shortly after requesting the card, defendant was arrested. Carr admitted to using the ATM cards to acquire about $600 but denied knowing what happened to the rest of the money. In a statement given to the police immediately after his arrest, Carr repeatedly referred to his girlfriend, "Tampa," because he did not want to name Barb Kubas.

Carr's trial testimony directly contradicted at least two prior statements he had made. On November 18, 1996, just prior to receiving his sentence for his part in the ATM scheme, Carr testified that (1) defendant had set up the false ATM card using one of the Bank's laptop computers; (2) defendant had told him to go to the Bank to pick up the false ATM card; (3) defendant told him to use the name "Daryl Simson"; (4) after withdrawing $400, he gave the first ATM card to defendant; (5) he played no part in setting up the false ATM card; and (6) Barb Kubas knew nothing about defendant's scheme. Carr emphasized that his story was truthful, that he was willing to retell it under oath at defendant's trial, and that he would accept the service of a subpoena to testify at defendant's trial. At defendant's trial, Carr's November 18, 1996, testimony was admitted as substantive evidence as a prior inconsistent statement under section 115--10.1 of the Code of Criminal Procedure of 1963 (the Code) (725 ILCS 5/115--10.1 (West 1996)).

Carr's testimony at defendant's trial also contradicted an unsworn statement Carr gave to the assistant State's Attorney on January 2, 1996, four days before defendant's trial began. During his direct examination at defendant's trial, Carr admitted to telling the assistant State's Attorney that (1) defendant was responsible for setting up the false ATM card; (2) defendant kept the false ATM card after Carr made his initial withdrawals; (3) "Tampa" was in fact defendant; and (4) Barb Kubas knew nothing about defendant's ATM card scheme. However, Carr denied stating that defendant kept most of the withdrawn money. Carr attributed the inconsistencies between his trial testimony and his January 2, 1996, statement to his not being represented by counsel during the January 2, 1996, interview. The trial court admitted Carr's January 2, 1996, statement for impeachment purposes only.

The State next called Barb Kubas, a retail banker, who worked with defendant at the Bank. Kubas explained that defendant worked as a temporary entry-level receptionist whose duties included greeting customers and filing. Defendant's duties did not include opening accounts.

According to the Bank's records, Kubas issued ATM cards to Daryl Simson in October 1995 and March 1996. Although Kubas did not recall issuing the October 1995 ATM card, she did remember issuing the March 1996 card. According to Kubas, Daryl Simson approached her desk in March 1996 and requested a new ATM card. Without asking for any identification, Kubas pulled Daryl Simson's ATM file, generated a new ATM card, and handed the card to Carr. Kubas testified that, under the Bank's standard operating procedures at the time, she was not required to ask for identification before issuing an ATM card. When asked whether she knew who set up the Daryl Simson ATM account and file, Kubas responded "No."

Sometime after March 1996, Kubas learned that Daryl Simson was in fact Billie Carr, a friend of defendant's. After the Carls discovered the unauthorized withdrawals from their account, Kubas assisted in the Bank's internal investigation. That investigation focused exclusively upon defendant and Billie Carr; nobody else was investigated. When Carr returned to the Bank on June 4, 1996, to obtain a third ATM card, Kubas notified the Bank's security officer. The ...


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