Appeal from the Circuit Court of Lake County. No. 02-CF-2791. Honorable John T. Phillips, Judge, Presiding.
The opinion of the court was delivered by: Justice Callum
On January 24, 2003, a jury convicted defendant Demetrius D. Davis of financial identity theft (720 ILCS 5/16G--15(a) (West 2002)), computer fraud (720 ILCS 5/16D--5 (West 2002)), and theft (720 ILCS 5/16--1(a)(2)(A) (West 2002)). On March 28, 2003, defendant was sentenced to concurrent terms of 6" and 2" years in prison. On appeal, defendant raises two issues: (1) whether his trial counsel was ineffective because she failed to request a jury instruction on accomplice witness testimony; and (2) whether the computer fraud conviction must be vacated under the one-act, one-crime rule. For the following reasons, we find that trial counsel was effective and that the computer fraud conviction should not be vacated. Accordingly, we affirm.
In the summer of 2002, Paul Keller and Carrie Marusich realized that they had become victims of identity theft when banks contacted them to inquire into recent credit card applications. Knowing that they had not applied for credit cards from those banks, they immediately reported the crime to the authorities, who began investigating. The investigation revealed that credit card applications had been filed in the victims' names and that the authorized user had been listed as "D. Davis," a person neither victim knew. Additionally, although the victims were listed on the credit card applications, neither victim had lived at 1520 Ridgeland, Waukegan, Illinois, the address listed as the mailing address on the applications. The applications were made via the Internet, and in at least one instance the authorities identified the specific Internet Protocol (IP) address from which the application had been made. One bank had issued two credit cards, one in Paul Keller's name and one in the name of D. Davis. The cards had been used to obtain $1,659 in car tires and rims, $499.16 in audio equipment, a $2,000 cash advance, and other miscellaneous items, totaling $12,497.04 in purchases. Every time the bank put a fraud alert hold on the cards, "D. Davis" had the hold lifted.
Upon further investigation, the authorities discovered that, before they became victims of identity theft, both Keller and Marusich had completed credit applications at their local Radio Shack. Although Keller could not identify the salesperson who had helped him, Marusich had retained her sales receipt and the business card of the salesperson who had helped her. The business card was that of Demetrius Davis, a Radio Shack employee whom Marusich identified as defendant at trial. The sales receipt, however, had "JRL" written on it, and "Jason" was written on the business card.
Investigators found defendant at a house with his fiancée, Jonyell Daniels. A search of the home revealed the "D. Davis" credit card and defendant's identification card next to a computer, letters from various banks addressed to Paul Keller, the "Paul Keller" credit card in a leather wallet, individuals' personal information on a list that was in a purse, and a car registered to Daniels. The car had new tires and new audio equipment. Nothing in the house listed the house as defendant's residence. Investigators arrested defendant and Daniels.
After the arrest, Detective Thomas Luka interviewed both defendant and Daniels. According to Detective Luka, defendant stated that he lived with Daniels, that he placed the computer in the house, and that he used the computer to access online credit card applications. Defendant admitted using the "D. Davis" credit card to make most of the purchases charged to the card, but he did not recognize all of the charges.
During the interview, defendant signed both a handwritten statement and a typewritten statement. In the handwritten statement, defendant admitted to obtaining a list of individuals' personal information from a friend named Jason and using that list to obtain a credit card in Paul Keller's name. He wrote that his intent was to make a better life for himself and for his family. However, he also wrote, "These are the facts that were brought to me by Det. Luka." In the more detailed typewritten statement, defendant admitted to obtaining a list of Radio Shack customers' names, addresses, social security numbers, dates of birth, and phone numbers. Via his computer, he used this information to complete online applications for credit cards from various banks. Through this method, he obtained one credit card in the name of Paul Keller and an authorized user card in the name of D. Davis, which he had mailed to his grandmother's address at 1520 Ridgeland. He kept the "D. Davis" card for himself and gave the "Paul Keller" card to Daniels. While he was with Daniels, he purchased tires, rims, and audio equipment for her car. He also used the card to obtain a $2,000 cash advance, some of which he gave to Daniels.
Daniels also prepared a handwritten statement, which she admitted was "pretty much true" despite alleging Detective Luka's influence. At trial, Daniels testified consistently with her statement that she was dating defendant and was with him when he purchased a computer, which he placed in her bedroom. She knew defendant's computer passwords and that defendant's IP address was the same as the one from which the investigators found a credit card application had been made. Defendant eventually showed Daniels a list of individuals' personal information and told her that they could be better off by using the information to obtain credit cards. Later, while at defendant's grandmother's house, defendant gave Daniels the "Paul Keller" card, which she placed in her wallet, but defendant kept the "D. Davis" card. Daniels claims that she never used the "Paul Keller" card, but witnessed defendant using the "D. Davis" card to make purchases at various locations.
Consequently, defendant and Daniels were charged with a variety of crimes. Daniels testified that she pleaded guilty to theft and was sentenced to 30 months of probation, 12 months of work release, and $12,000 in restitution. Defendant chose to go to trial.
At trial, defendant, who was impeached by his prior felony conviction of aggravated robbery, testified on his own behalf. He recanted his written statements, claiming that Detective Luka had coerced them from him by pushing him and beating him while he was in handcuffs. Defendant claimed that his request for counsel had been ignored, that Detective Luka had produced the typewritten statement before speaking to him and had dictated the first page of the written statement, that he had written the rest of the statement based on what he thought he was expected to say, and that he had signed the statements because he feared for his safety. He claimed that he had indicated this coercion by writing, "These are the facts that were brought to me by Det. Luka." On rebuttal, Detective Luka denied all of these allegations, and the parties stipulated that defendant's booking sheet, prepared after the interview, noted that defendant described his physical condition as "Good."
While testifying, defendant changed his version of events, claiming that he had been trying to protect Daniels. He said that Daniels approached him to tell him that she had found her biological father, who wanted to give her a debit card linked to his bank account. Daniels feared, however, that her mother would be mad that she had found her father, and she did not want her mother to find the debit card in the mail. Defendant agreed to have the card sent to his grandmother's house, where he lived. He was not at his grandmother's house when the card arrived, so Daniels picked it up without him. Not aware of the father's name, of the existence of a card in Paul Keller's name, or of whose name would be on the account, defendant accepted from Daniels the "D. Davis" card, which Daniels told him was in his name in order to hide from her mother the fact of her father's financial support. Daniels told him that the bills went to her father, so at her request defendant bought her things with the card.
Defendant claimed that he never got a chance prior to trial to tell police that Daniels told him that she was looking for her father. He denied using the computer to get a credit card in Paul Keller's name, denied signing or ever seeing the "Paul Keller" card, and denied making some of the purchases charged to the account. He did, however, admit to making the list of customers' personal information, but claimed to have done so at the request of the Radio Shack district manager. He claimed never to have shown Daniels the list or to have taken it from the store. Additionally, he claimed not to have been working the day Marusich completed her credit application at Radio Shack, and, as evidence that someone else helped her that day, he pointed to the facts that "JRL" was written on the sales receipt and that "Jason" was written on his business card. Finally, he did admit to calling the bank to insist that the fraud alerts be removed.
Despite his version of events, the jury found defendant guilty on all counts. The court denied defendant's motion for a new trial and sentenced him. Defendant now appeals, claiming ineffective assistance of ...