Appeal from Circuit Court of McLean County No. 98CF574 Honorable G. Michael Prall, Judge Presiding.
The opinion of the court was delivered by: Justice Cook
A jury found defendant Daniel Rohlfs guilty of one count of theft by deception (over $300) (720 ILCS 5/16-1(a)(2), (b)(4) (West 1998)) and three counts of attempt (theft by deception) (720 ILCS 5/8-4(a), 16-1(a)(2) (West 1998)). Each count involved a different victim. The trial court sentenced Rohlfs to an extended term of 10 years' imprisonment on the theft count and concurrent terms of 364 days' imprisonment on the three attempt counts. On appeal, Rohlfs challenges the admissibility of certain evidence at trial, the sufficiency of evidence to support the conviction, and the fees and costs imposed at sentencing. After the initial briefs were submitted, Rohlfs filed a supplemental brief challenging his extended-term sentence based upon the United States Supreme Court's recent decision in Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). We affirm in part, vacate in part, and remand.
Rohlfs was incarcerated in the McLean County jail beginning on May 22, 1998, for charges unrelated to those at issue here. Shortly thereafter, jail officials began receiving complaints from the public that an inmate was making collect phone calls to elderly women, pretending to be a relative and then asking the women to wire money to him via Western Union. One of the victims, Edra Thames, fell prey to the scam and wired $1,500 to Rohlfs. The money order was delivered to Rohlfs in jail, and he endorsed it. The money order was then confiscated and never deposited into Rohlfs' account. After this incident, Rohlfs was placed into isolation without access to a phone. The complaints regarding the phone scam ceased.
II. MOTION IN LIMINE AND MODUS OPERANDI
Prior to trial, Rohlfs filed a motion in limine asking the court to prohibit the introduction of evidence linking him to three telephone scams that were not charged in the indictment at issue here. He argued that he would be prejudiced by the introduction of the other-crimes evidence because it was merely used to show a propensity to commit crime. The State argued that the evidence was properly admitted under the modus operandi exception to establish identity due to the similarities between the charged and uncharged offenses.
Rohlfs objects to the admissibility of testimony from two women that disclosed details about his phone scams. Rohlfs informed Sandra Magee that he would pick a name of someone who sounded old from a directory, call her, pretend to be a relative, and ask her for money. Magee also identified Rohlfs' records of the scams, including the individuals he contacted, relatives' names, and money requested. Rohlfs had boasted to Magee that he had used the scam to bond out of jail on a previous occasion. Karen Reynolds also testified, indicating that Rohlfs had asked her to retrieve Western Union wire transfers for him in the past. One of the wire transfers was sent to Rohlfs from Virginia Horton, the victim of a phone scam in Springfield, Illinois.
Rohlfs also claims the circuit court improperly admitted evidence relating to Eva Thacker and Betty Vance. These women received phone calls from an inmate at the jail requesting money. Testimony from jail officers established that, although several inmates had access to the phone in each cell block, Rohlfs was the only inmate who was in every cell block at the times the complained-of calls were made. For example, Vance was called from cell block H while Rohlfs was housed in that cell block. Similarly, Thacker was called from cell block E while Rohlfs was in that cell block.
Generally, evidence of other crimes is inadmissible where that evidence is relevant solely to establish a defendant's propensity to commit crime. People v. Robinson, 167 Ill. 2d 53, 62, 656 N.E.2d 1090, 1094 (1995). However, evidence of other crimes is admissible where relevant for a purpose other than to show the propensity to commit crime. Robinson, 167 Ill. 2d at 62, 656 N.E.2d at 1094. For example, evidence of other crimes may be relevant to prove intent, identity, motive, absence of mistake, modus operandi (Robinson, 167 Ill. 2d at 62-63, 656 N.E.2d at 1094), or the existence of a common scheme or plan. People v. Crayton, 175 Ill. App. 3d 932, 946, 530 N.E.2d 651, 660 (1988).
Here, the State argues that the similarities between the charged and uncharged offenses justify admission of the other-crimes evidence to further establish Rohlfs' identity in the charged offenses. Such a showing must create a logical inference that, if Rohlfs committed a former offense, he also committed the latter. See People v. Willer, 281 Ill. App. 3d 939, 954, 667 N.E.2d 708, 719 (1996). The offenses need not be identical but must share features that, although common to similar crimes in general, are distinctive when considered together. Willer, 281 Ill. App. 3d at 954, 667 N.E.2d at 719. Although there must be a persuasive showing of similarity, the test is not one of exact, rigorous identity, and some dissimilarity will always exist between independent crimes. Robinson, 167 Ill. 2d at 65, 656 N.E.2d at 1095.
In this case, the similarities between the charged and uncharged offenses far outweigh the differences and admission of the evidence was appropriate. All the victims were elderly women and, in each instance, the caller was a man. In every call, the caller claimed to be a relative. The caller always asked for money for his car. In four of the seven calls, the money was to be used for past-due car payments, supposedly to avoid repossession. In the other three calls, the money was to be used for car repairs because the caller had allegedly been in an accident. In five of these calls, the victims were asked to send the money via Western Union. The other two victims indicated that their calls never reached the point of discussion on how to send the money. In every call where the caller claimed to have been in an accident and the victim questioned whether he was in fact her relative, he said his voice sounded different because he had hit his throat on the steering wheel. In five of the calls, the caller asked for $1,500. All of the victims were called within a two-week time span from May 17, 1998, to June 1, 1998. Moreover, with respect to the calls made from the jail, Rohlfs was the only inmate to be in each jail cell block at the time the various calls were made.
In some cases, no particular factor is unique, but it is the totality of the factors that is probative. People v. Biggers, 273 Ill. App. 3d 116, 123, 652 N.E.2d 474, 479 (1995). When viewing the totality of factors in this case, the similarity between the charged and uncharged offenses is overwhelming. The circuit court here carefully reviewed the evidence relating to the admissibility of the other-crimes evidence. We conclude that the similarities created a logical inference that the same person committed both the charged and uncharged offenses. Thus, the circuit court did not abuse its discretion in admitting this evidence.
Finally, we find that the probative value of the evidence was not outweighed by the risk of unfair prejudice. The jury was instructed that the evidence concerning the uncharged conduct had been received on the issue of defendant's identification and could be considered only for that limited purpose. Illinois Pattern Jury Instructions, Criminal, No. 3.14 ...