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People v. Cazacu

May 10, 2007

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
DINU CAZACU DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. Honorable Timothy Chambers, Judge Presiding.

The opinion of the court was delivered by: Presiding Justice Quinn

Following a bench trial, defendant was convicted on two counts of possession of an altered card pursuant to section 15 of the Illinois Credit Card and Debit Card Act (Act) (720 ILCS 250/15 (West 2004)) and sentenced to one year of probation. On appeal, defendant contends that (1) the trial court erred in admitting business records into evidence despite the lack of proper foundation for them, (2) the trial court erred in denying his motion for a directed verdict, (3) the charging instrument lacked the necessary certainty, and (4) section 15 of the Act contains an unconstitutional mandatory presumption.

BACKGROUND

The record shows that defendant was charged by information with one count of possession of a counterfeit card. On December 14, 2005, the day of trial, the trial court granted the State's request for leave to amend or to file a second count of possession of "a stolen credit card."

During the ensuing bench trial, Jerri Hill testified that about 12:15 pm. on February 17, 2005, she was working register 11 at the Home Depot located at 2301 Oakton in Evanston, Illinois, when defendant, whom she identified in court, attempted to purchase two combo packs of Dewalt drills, which were each $499. The parties stipulated that the total purchase price was $1,085.33.

Hill testified that she requested defendant's state identification (ID) due to the amount of the purchase. Defendant also gave her a credit card, which he removed from his wallet. After Hill checked defendant's ID, she scanned the credit card into her computer. The number for the credit card account that appeared on the computer screen, however, did not match the number on the actual credit card. Hill then informed defendant that she needed to get approval for the purchase and called Home Depot security. Thereafter, a security guard responded and escorted defendant and the merchandise to the back of the store.

In court, Hill identified People's exhibit No. 1 as the credit card used by defendant. The card was a Citi Bank MasterCard that displayed defendant's name and the number 54241805555642245. She identified People's exhibit No.2 as the sales receipt, which had her ID number. The receipt also displayed the last four numbers of the credit card account as 6999, which was consistent with the account number she saw on her computer screen and different from the actual card number.

David Axelson, a manager of fraud investigation for Citi Bank, testified as an expert in the field of credit card fraud. He stated that on the afternoon of February 17, 2005, he went to the Evanston police department in response to a telephone call from Officer Ralph Mieszala. At the station, Mieszala provided Axelson with two credit cards, a debit card, and two private label store credit cards. The two nonprivate credit cards and debit card were MasterCards. Axelson physically inspected each card and determined that all five cards were original, true-issuance credit cards.

Axelson then examined the magnetic strip on each card with a magnetic strip reader, which he had used to inspect about 4,000 cards. He verified that the strip reader was functioning properly by first sliding his own credit card through the machine.

After the defense stipulated that the five cards in the State's possession were taken from defendant, Axelson verified that they were the cards he tested on February 17, 2005. Over defendant's objection, Axelson testified that the first credit card had been re-encoded with another MasterCard account, which happened to be a Citi Bank credit account. When Axelson slid the credit card through the strip reader, an account number different from the number on the actual card appeared. Over defendant's objection that Axelson was not a keeper of Citi Bank records, Axelson stated that upon reviewing Citi Bank records, he discovered that the account number was issued to Albert Cowan.

Axelson then identified the debit card recovered from defendant. He stated that the card displayed defendant's name and the number 5262262028237426. Over defendant's objection, he further stated that he ran the card through the strip reader and discovered that a different MasterCard account was encoded in the strip. Like the first account, it was also a Citi Bank account.

Subsequently, when the State asked Axelson to whom the account number found in the card strip was assigned, the defense again objected. The following exchange then occurred:

"[DEFENSE COUNSEL]: The argument is he doesn't have knowledge. That they have to provide the keeper of record to include that information belongs to. They have not presented that evidence at this point, nor do we have that evidence at this point. It is improper for this witness to testify that through that information on that belongs to.

THE COURT: Have you provided them?

[ASSISTANT STATE'S ATTORNEY]: Your Honor, absolutely. There has been much discovery, and it's been an issue ongoing with counsel.

Counsel has asked for certain discovery, and it all has been provided - many City [sic] Bank records, many police reports that contained the information, and the name and the account number of the account holder.

[DEFENSE COUNSEL]: Your Honor, I am not saying that they have not provided that information. What it is is we do not have the keeper of record. That is the only person who can testify to what information is contained in their account.

This person cannot testify that they are required on the foundation rules to bring the keeper of records to testify. This card belongs to this person or this number belongs to this person. It is improper to introduce that. It is clearly hearsay. It doesn't follow [sic] under the exception.

THE COURT: All right. I will sustain it and commence and continue this after the testimony of Mr. Axelson. They can bring in the keeper of records.

[DEFENSE COUNSEL]: Your Honor, we are in the midst -

THE COURT: I understand.

[DEFENSE COUNSEL]: I specifically asked in a motion that they disclose all their witnesses. I specifically asked about the keeper of record, and they said there was none. Now to come in and to allow them to bring in the keeper of record in the mist ...


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