Appeal from the Circuit Court of Du Page County. No. 00-CF-2651 Honorable Perry R. Thompson, Judge, Presiding.
The opinion of the court was delivered by: Justice Grometer
Following a jury trial in the circuit court of Du Page County, defendant, Harry Flynn, was convicted of one count of theft (720 ILCS 5/16--1(a)(2)(A) (West 2000)) and one count of home repair fraud (815 ILCS 515/3(a)(2) (West 2000)). On appeal, defendant argues that this cause must be remanded for further proceedings because the trial court failed to rule on his posttrial motions. Alternatively, defendant asserts that (1) the trial court's evidentiary rulings deprived him of a fair trial; (2) his convictions of both home repair fraud and theft violate the one-act, one-crime rule; and (3) the State failed to prove him guilty beyond a reasonable doubt of home repair fraud and theft. For the reasons that follow, we affirm defendant's theft conviction and sentence and vacate his home repair fraud conviction and sentence.
On or about September 29, 2000, a grand jury returned a two-count indictment charging defendant with home repair fraud (815 ILCS 515/3(a)(2) (West 2000)) and theft (720 ILCS 5/16--1(a)(2)(A) (West 2000)). Defendant was represented at trial by a public defender.
Defendant's trial commenced August 14, 2001. Timothy Howard testified that he owns a two-story residence with an attached deck in Naperville. In March 2000, Timothy's wife, Katherine, contacted three contractors about replacing the deck with a larger structure. Late in March, Timothy and Katherine met with defendant at their home. Defendant introduced himself as "Joe Flynn" and purported to be a representative of a company known as Design Dimensions. Timothy characterized defendant's approach to the project as "appealing." Defendant told the Howards that, because he was a carpenter, he could do anything they wanted. Defendant also offered to save the Howards money by sanding down the existing structure instead of replacing it. This would allow the Howards to build a larger canopy over the deck. Other contractors told the Howards that the sanding method was not feasible. After considering presentations from all three contractors, the Howards decided to hire defendant. As Timothy explained, "We felt we could get closer to what we really wanted with [defendant] *** even though he was more expensive."
On April 1, 2000, the Howards met with defendant to finalize the contract. The contract listed a telephone number for Design Dimensions, but no address. The Howards inquired why the signature line on the contract listed defendant as "Harry Flynn dba DESIGN DIMENSIONS." Defendant explained that because he shares his birth name (Harry) with his father, he goes by the name of Joe. The Howards tendered defendant a check for $2,445 payable to "Harry Flynn." This deposit represented slightly more than 50% of the project's cost. Defendant agreed to begin construction on May 8, 2000, and told the Howards that the project would be completed in five to eight days, depending on the weather. Although the contract provided that it was the homeowner's responsibility to obtain any necessary permits, defendant offered to procure the permits for the Howards. To that end, Timothy provided defendant with a plat of survey. Moreover, in the Howards' presence, defendant completed the documents needed to obtain a permit, which Timothy signed and dated.
Late in April, the Howards left on a work-related trip. Their daughter, Alisa, remained at the home. When the Howards returned on May 10, they discovered that work on the deck had not yet begun. Beginning in June, Timothy made the first of at least four telephone calls to defendant. The calls were never answered by a person, and no one ever returned Timothy's messages. Eventually, the Howards contacted the police department. On July 25, 2000, Timothy drafted a letter to defendant. The Howards were unable to locate an address for Design Dimensions, but the police delivered the letter to defendant. In the letter, Timothy cancelled the contract and requested the return of his money. Timothy never received a response. Timothy offered that no materials were ever delivered to his home and no subcontractor ever came to work on the project. However, Timothy admitted that he saw markings suggesting that J.U.L.I.E. *fn1 had been to his property.
On cross-examination, Timothy testified that defendant presented him and his wife with a book containing photographs of work defendant had allegedly done and gave them directions to a home where he claimed to have built a deck similar to the one requested by the Howards. Timothy also believed that it was defendant who contacted J.U.L.I.E. to mark his property.
Katherine Howard's testimony corroborated that of her husband. In addition, she testified that she contacted Design Dimensions after seeing an advertisement for the company in a local newspaper. Katherine estimated that she attempted to contact defendant by telephone between 8 and 10 times during the month of May. Each time she left a message, but defendant never responded. Katherine acknowledged that, prior to leaving on the business trip in April, she saw people marking her property with spray paint.
Alisa Deer, the Howards' daughter, testified that she lived in her parents' Naperville home from February 1998 through July 2000. Because the Howards expected to be out of town on the date defendant was scheduled to start the deck project, they asked Alisa to remain around the home while the work was done. Alisa complied, leaving the house only for a half hour each morning and a half hour each evening in order to take her son to and from day care. Alisa testified that she never observed any work being done on the deck between May and July 2000. In addition, Alisa never received or took phone messages from anyone identifying himself as defendant or as being affiliated with Design Dimensions.
Louis Fortino, a plan examiner with the City of Naperville, testified that the city requires homeowners to obtain a permit to add a deck to a house. The city generally issues a permit three to seven calendar days after it receives all necessary documentation, including two copies of the plat of survey. Fortino identified a computer printout dated February 8, 2001, showing that a permit dated in 1987 was the only permit issued by the city for the Howards' address.
Colleen Cannella testified that she was involved in a relationship with defendant from March 1999 until July 2000. From May 1, 2000, until the end of the relationship, Cannella lived with defendant. During the relationship, Cannella learned about defendant's record-keeping system and the Howards' project. Canella identified a file folder containing documents related to the Howards' project, including a plat of survey, which she found in a closet in the home she shared with defendant. Cannella never observed defendant buy or store any building materials at their home. Cannella testified that defendant never told her that he had finished the Howards' project. Cannella also stated that defendant never "looked like he had been laboring" when he would return home.
At defendant's request, Cannella opened two bank accounts between April and July 2000, one at MidAmerica Bank and the other at Prairie Bank in Plainfield. Although she was a cosigner on the accounts, Cannella testified that she never withdrew money from the accounts. In June 2000, the police department contacted Cannella to ask her questions regarding defendant. In November 2000, Cannella received a letter written by defendant. The letter, which was admitted into evidence, expresses "appreciation" for Cannella's role as a "snitch/stoolpigeon."
The parties then entered into two stipulations. First, the parties stipulated that, if called to testify, the keeper of records of MidAmerica Bank would provide a foundation for the admission of bank records pertaining to an account opened by defendant and Cannella on April 3, 2000. Second, the parties stipulated that, if called to testify, the keeper of records of Prairie Bank would provide a foundation for the admission of bank records pertaining to an account opened by defendant and Cannella on April 15, 2000. The State rested, and the trial court denied defendant's motion for a directed verdict.
Defendant testified that he has been a construction worker and carpenter since the 1960s. Defendant identified an album containing photographs of projects he had completed, which he shows to prospective clients. In the spring of 2000, defendant placed an advertisement in a local newspaper for Design Dimensions, the name under which he operates.
After accepting the Howards' check, he told them he would start the project the week of May 8. Defendant testified that in order to obtain a building permit, he needed to submit a plat of survey to the city. At one time, defendant testified that he never saw the Howards' plat of survey before it was introduced at trial. However, he also stated that he received a plat of survey after the Howards returned from their trip and that the city informed him that permit approval takes a week to 10 days. Defendant also noted that the Howards' contract contains a line indicating whether the owner has a plat of survey. This item was not "checked" on the contract because the Howards could not locate the plat of survey on April 1, 2000, when the contract was executed.
Defendant testified that there was some work he could do on the Howards' project despite the lack of a permit. For example, defendant testified that he contacted J.U.L.I.E. on May 6 or 7, and that when he went by the house on May 11 or 12, there were markings on the ground. In addition, during the third week of May, defendant rang the Howards' doorbell to inform them that he was going to prepare the existing deck for sanding by countersinking all the nails. Although no one answered the door, defendant began countersinking the nails. He was unable to finish the task because the heads of the nails would pop off as he attempted to drive them into the wood and because it started to rain. As defendant left the premises, he ran into an unidentified man.
Defendant explained that he did not return the Howards' telephone calls because he was experiencing problems with his phone service. Defendant acknowledged receiving Timothy's June 25 letter. In response, he called his home to instruct Cannella to remit a cashier's check to the Howards. However, an unidentified person answered the telephone instead of Cannella. Defendant admitted that he has taken no steps to contact the Howards since July 1, 2000. He also conceded that in 1995 he had been convicted of three counts of home repair fraud.
On cross-examination, defendant testified that the only time he met with the Howards was on April 1, 2000. At that time, they agreed to hire him and signed the contract. Defendant drafted the contract himself, and it was the typical form contract he used at Design Dimensions. Despite language in the contract requiring the homeowner to obtain the necessary permits, defendant agreed to obtain the permits as a courtesy to the Howards.
Sergeant David Lee Taggart of the Du Page County sheriff's department testified that he was assigned to the corrections bureau. While defendant was housed at the Du Page County jail, another law enforcement agency asked Taggart to prohibit defendant from phoning a number that defendant had been trying to call. Taggart did not know the identity of the person defendant was trying to reach.
On August 14, 2001, following closing arguments, the jury returned a verdict of guilty on both counts. On September 13, 2001, defense counsel filed a motion for judgment notwithstanding the verdict or a new trial. The following day, defendant filed two pro se motions. The first motion was captioned "Motion to Arrest Judgment," the second, "Motion Claiming Ineffective Assistance of Counsel." At a hearing on September 17, 2001, the trial court entered orders granting the public defender leave to withdraw as defense counsel, withdrawing defense counsel's posttrial motion, and appointing Gene Ognibene to represent defendant on his posttrial motions.
On September 26, 2001, defendant filed a pro se "Motion of Recusal." On October 15, 2001, the trial court allowed Ognibene to withdraw due to a conflict of interest and appointed Patrick Provenzale in his stead. Defendant told the court that he would prefer to defend himself. The trial court reminded defendant that he had some posttrial motions pending. The following colloquy then ensued:
"DEFENDANT FLYNN: I know, there is no problem. I won't really care after the sentencing because I will either go to DOC or I will go to Will County, which [sic] I got the jury trial.
THE COURT: I appreciate that.
DEFENDANT FLYNN: I got that next month. I want to get sentencing closure on Du Page.
THE COURT: Okay. But you agree with me that you filed a whole lot of motions.
DEFENDANT FLYNN: Yes, ...