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The People of the State of Illinois v. Karen Bailey

April 26, 2011

THE PEOPLE OF THE STATE OF ILLINOIS,
PLAINTIFF-APPELLEE,
v.
KAREN BAILEY,
DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County No. 07 CR 13619 Honorable Angela Munari Petrone,Judge Presiding.

The opinion of the court was delivered by: Justice Harris

JUSTICE HARRIS delivered the judgment of the court, with opinion. Presiding Justice Cunningham and Justice Karnezis concurred in the judgment and opinion.

OPINION

On January 27, 2009, the trial court found defendant guilty of four counts of financial exploitation of an elderly person and two counts of theft. The evidence showed that in less than one year, defendant had taken and depleted the life savings -- over $300,000 -- from a woman who suffered from dementia severe enough that she was not able to understand and manage her financial affairs. That included several bank accounts and monthly railroad retirement pension deposits. In perpetrating her crimes, the defendant used two dubious documents, a general power of attorney that had terminated due to the incompetence of the principal and a durable power of attorney. After finding defendant guilty, the trial court sentenced her to concurrent sentences of 11 years' incarceration in the Illinois Department of Corrections. Defendant then appealed to this court, raising six issues on appeal. First, defendant argues that the trial court erroneously sustained certain hearsay objections during the testimony of the defense's sole witness. Second, defendant argues that the trial court mischaracterized significant portions of the evidence presented at trial. Third, defendant maintains that the State failed to prove beyond a reasonable doubt either that the victim was incapable of authorizing defendant's various uses of the victim's money or that defendant had notice that her power of attorney had been terminated. Fourth, defendant argues that her sentencing was improper because the trial court considered two improper factors in aggravation. Fifth, defendant also argues that her sentences are excessive. Finally, defendant argues that all but one of her convictions should be vacated pursuant to the one-act, one-crime doctrine. For the following reasons, we affirm.

JURISDICTION

The circuit court sentenced defendant on April 9, 2009. Defendant timely filed her notice of appeal on April 13, 2009. Accordingly, this court has jurisdiction pursuant to article VI, section 6, of the Illinois Constitution and Illinois Supreme Court Rules 603 and 606, which govern appeals from a final judgment of conviction in a criminal case entered below. Ill. Const. 1970, art. VI, §6; Ill. S. Ct. R. 603 (eff. July 1, 1971); R. 606 (eff. March 20, 2009).

BACKGROUND

The victim in this case, Mary Ann Wilson, is an octogenarian, who has been diagnosed with dementia and is currently living in a nursing home. She had been living with her husband, Charles Wilson, at their home on the south side of Chicago until his death in 1993. She remained in the home following her husband's death until 2006 when she entered a nursing home. During the period before entering the nursing home, she had lived frugally and amassed savings of over $300,000 in her various bank and investment accounts. But beginning in 2005, defendant acquired wrongful control over the victim's finances and drained her life savings.

A grand jury indicted defendant on four counts of financial exploitation of an elderly person (720 ILCS 5/16-1.3(a) (West 2008)) and eight counts of theft ( four counts pursuant to section 16-1(a)(1) of the Criminal Code of 1961 (720 ILCS 5/16-1(a)(1) (West 2008)) and four counts pursuant to section 16-1(a)(2) (720 ILCS 5/16-1(a)(2) (West 2008))). The State proceeded against defendant on counts I through VIII and nol-prossed counts IX through XII. Defendant waived her right to a jury trial and the State proceeded by way of a bench trial beginning on January 5, 2009. The following evidence was presented at trial.

The State called Dr. Dominic Gaziano, who testified as an expert witness in internal medicine, with a specialty in geriatric medicine. Dr. Gaziano saw the victim when she was admitted to St. Mary of Nazareth Hospital on May 3, 2006. When she was admitted, the victim presented with dementia, Parkinson's disease-like symptoms, a urinary tract infection, and dysphasia. Dr. Gaziano testified that on that date, the victim was suffering from severe dementia such that she could not make routine day-to-day decisions. He further testified that after reviewing the victim's medical records, including various diagnostic scans taken as far back as 2002, in his opinion the victim was suffering from dementia when she was hospitalized in May 2004. The sort of dementia from which the victim suffered -- vascular dementia -- was a type that progressed slowly over time; it did not come on suddenly. On direct examination, Dr. Gaziano testified as follows:

"Q. Could you consider a person who has any type of dementia to be competent to make decisions, such as granting a person control over all of their financial transactions?

A. No, I would not suspect so."

Dr. Gaziano reiterated this opinion on redirect examination:

"Q. If someone is diagnosed, again I am sorry if I am being repetitive, if someone is diagnosed with dementia, whether severe or just a general diagnosis of dementia, Doctor, you stated it's your opinion within a reasonable degree of medical certainty that that person is not capable of making financial decisions for themselves?

A. Yes."

Following Dr. Gaziano's testimony, the State entered three agreed stipulations into evidence. First, the victim, Mary Ann Wilson was born on April 16, 1920, and at the time of trial resided at a nursing home in Chicago. Second, records made by AOL in the regular course of business identified a certain e-mail address and account as belonging to defendant. Third, the State entered into evidence a genuine copy of a durable power of attorney dated January 16, 2004, presented by defendant by way of motion and sworn affidavit, and filed June 7, 2006, in support of her position in probate case number 06 P 3549; a genuine copy of Mary Ann Wilson's last will and testament dated January 16, 2004; a genuine copy of an advanced healthcare directive dated January 16, 2004; and a genuine copy of general power of attorney dated January 15, 2004.

Michael Kenney, the owner of legacywriter.com, a web-site that sells legal documents, testified next for the State. Kenney identified the various documents previously stipulated to by the parties and entered into evidence -- the durable financial power of attorney, healthcare power of attorney, last will and testament, and advanced healthcare directive -- as documents ordered from his web-site by someone using defendant's e-mail address. Kenney further testified that his company received two e-mails from defendant's e-mail address requesting assistance in completing her purchase of the documents. Those e-mails were sent on the morning of April 20, 2006. The account associated with defendant's e-mail address was created in February 2006. In addition, Kenney testified that the durable power of attorney form signed and dated in January 2004 was not available for purchase until August 2004. The advanced healthcare directive was not available until June 2004, and the healthcare power of attorney form was not available for purchase until April 2005.

Following Kenney's testimony, the State entered several agreed stipulations regarding the amount of money contained in Mary Ann Wilson's various bank accounts. As of August 1, 2005, she had over $291,000 in three separate bank accounts. She had an investment account at UBS Financial Services, with a balance of over $185,000. She also had over $79,000 in a checking account and over $26,000 in a money market account at LaSalle National Bank. Prior to June 9, 2005, she was living off of her railroad retirement checks and barely withdrew any funds from her three accounts. Instead, the balances in those accounts increased as she deposited United States Treasury retirement checks. As of April 20, 2006, just over $4,000 remained in Wilson's three accounts.

Arnetta Williams, Mary Ann Wilson's cousin, testified next for the State. Williams was appointed Wilson's temporary guardian on May 15, 2006, and was later appointed Wilson's legal guardian in July 2006. The two women became acquainted during the 1980s and formed a friendship through the 1990s. Sometime during 2004 and 2005 -- Williams could not testify as to the exact date -- Williams became worried about Wilson's well-being. Williams testified that she first became concerned during a telephone conversation with Wilson in which Wilson was incoherent and barely able to communicate. Williams telephoned Wilson repeatedly after that but Wilson did not answer the phone. Instead, Clifford Service, whom Williams believed to be Wilson's friend, answered the phone and would offer various excuses as to why Wilson could not come to the phone at that time. During one telephone call in March 2004, Williams became alarmed when Clifford told her that Wilson could not come to the telephone because she had been hospitalized. In April 2006, when Williams telephoned and was told that Wilson was asleep, she demanded that Clifford wake Wilson up and put her on the phone. Williams testified that when Wilson came to the phone, all Williams could hear was moans.

That same month, Williams traveled to Wilson's home to ascertain her condition in person. Wilson's home was dark and "totally smelling." Wilson lay stiff on her bed, flat on her back, covered in urine and feces. She could move her head from side to side a little bit but made no other movements. Williams testified that Wilson's physical condition remained like this during subsequent visits that she made during April 2006. During these visits, Williams observed that Wilson's clothing and shoes were missing. Williams did not observe any signs of renovation or other improvements to Wilson's house.

When she visited Wilson's home, Williams sometimes observed defendant and David Service, defendant's husband, present at the house. David drove two different vehicles: a Chrysler PT Cruiser and a new-looking white pickup truck displaying a Kunes Country Ford decal.

On May 3, 2006, a crisis nurse from the City of Chicago department of aging removed Wilson from her home and had her admitted to St. Mary of Nazareth Hospital. Williams testified that at the time of her admission to the hospital, Wilson was "unkempt, pale, confused, unable to really speak." After observing Wilson in the hospital, Williams contacted Wilson's brother, who commenced proceedings that eventually named Williams as Wilson's legal guardian.

As Wilson's legal guardian, Williams now has care and control of Wilson's financial affairs. Williams testified that she has sold Wilson's home in order to help cover the cost of Wilson's nursing home care. However, even with the sale of the house, Wilson's remaining funds are insufficient to continue to fund her nursing home care.

Chicago police detective Terance Nalls testified next for the State. Detective Nalls was assigned to investigate a report of financial abuse against Mary Ann Wilson made in August 2006. During his investigation, Detective Nalls attempted to interview Wilson but she was unable to communicate or respond to his questions. After a 10-month investigation, Detective Nalls arrested defendant outside her place of employment.

Defendant then filed a motion in limine to exclude Dr. Gaziano's testimony that, in his opinion, Wilson suffered from dementia in May 2004. The parties agreed that the portion of Dr. Gaziano's answer giving his opinion would be stricken. However, the remainder of Dr. Gaziano's answer, in which he testified to reviewing medical records from May 2004 and that those records established that Wilson suffered from dementia in May 2004, remained in evidence.

Trial proceedings then resumed and Marion Eppright, a Special Agent with the United States Railroad Retirement Board, Inspector General's Office, Office of Investigation (hereinafter Retirement Board or Board), testified for the State. Eppright testified that on June 7, 2007, he was assigned to investigate a possible fraud upon Mary Ann Wilson, who received railroad retirement benefits as the spouse of a deceased railroad worker. Wilson began receiving railroad retirement benefit checks in 1993 following the death of her husband. On November 15, 2005, defendant had mailed a letter to the retirement board, enclosing a general power of attorney. The letter explained that Wilson was no longer able to conduct her own financial affairs and requested that all uncashed checks issued to Wilson during October and November 2005 be reissued and mailed to defendant's address. In response to defendant's letter, the Retirement Board telephoned defendant and left a message on her answering machine instructing her to contact the Board's local field office in order to set herself up as a "representative payee" for Wilson.

Eppright explained that in the case of individuals receiving railroad retirement benefits who cannot handle their own financial affairs, the Board does not consider powers of attorney and instead requires that persons acting on behalf of the payee apply to become a "representative payee" and go through a Board screening process to determine their eligibility for the role. After a person has been designated as a "representative payee," that person must perform an accounting of all monies received on the beneficiary's behalf. Defendant never applied to become Wilson's "representative payee."

On January 5, 2006, the Joliet office of the Board received a change of address request signed "Mary Ann Wilson" and dated December 24, 2005. Beginning on January 6, 2006, the Board mailed Wilson's checks to defendant's address. On June 2, 2006, Arnetta Williams was designated Wilson's "representative payee" and began receiving all checks and correspondence to Wilson.

Eppright further testified that on February 16, 2006, defendant e-mailed the Board and asked it to reissue all uncashed checks to Wilson from the period of January 2004 through December 2005. The Board reissued numerous checks and mailed them to defendant's address. The checks issued between January and October 2004 were endorsed with a signature stamp in Wilson's name and were processed by LaSalle Bank. The majority of checks issued beginning in November 2004 were endorsed by defendant, with the initials "POA" after her signature, and were processed by Credit Union One.

After the State rested its case, the defense presented stipulation testimony of Donald Debit, a certified elder abuse caseworker employed by Metropolitan Family Services, a contract vendor for the Illinois Department of Aging. If called to testify, Debit would have testified that he visited the residence of Clifford Service and Mary Ann Wilson on March 27, 2006, and during that visit did not observe any indication of incontinence or unsanitary conditions. On April 26, 2006, Debit again visited the home of Service and Wilson and found no unsanitary conditions at that time. Debit spoke with Mary Ann Wilson at St. Mary's of Nazareth Hospital on May 6, 2006, and Wilson initiated conversation with him on that date.

The defense then presented its only witness: David Service, defendant's husband. David testified that as of the time of trial, he had been married to defendant for four or five years. Clifford Service is his father. David further testified that he had known Mary Ann Wilson for nearly 40 years. According to David, Wilson and his father began living together sometime during 1992 or 1993 and defendant began joining Wilson and Clifford Service on family outings around the same time.

David testified that on January 16, 2004, he observed Mary Ann Wilson sign a power of attorney. David signed that same power of attorney as a witness. This occurred at the Cook County building in Chicago where Wilson and Clifford Service had come to pick up defendant from her job there.

David testified that he saw Mary Ann Wilson nearly every day when he was not traveling. According to David, Wilson could speak and engage in conversation throughout 2004, and 2005.

In 2005, David drove an older model pickup truck and a Dodge van. At some point during that year, he acquired a new pickup truck. When asked how he paid for the new vehicle, David answered, "My parents bought it for me." David testified that it was his understanding that "Mary Ann was going to give [defendant] the money for me to go get the car. We all went, rode around and looked for the car for a couple of weeks."

David testified that during 2005, he also began work on an addition to the house that he shared with defendant. The addition would allow Clifford Service and Wilson to move in with David and defendant. According to David, Wilson gave defendant money with which to purchase materials for the renovation and hire a contractor to perform the work. Clifford Service would also occasionally help out with the work.

David further testified that Wilson provided him with funds to pay property taxes on a piece of property that he owned in Kankakee County. The property housed horses and, according to David, "we would go [there] on picnics as a family." These outings occurred "daily or at least semi-daily." According to David, Wilson gave defendant the money to pay the property taxes that David owed. On cross-examination, David testified that Wilson often rode the horse that David kept on the Kankakee property. Even though Wilson was 85 years old, had undergone a double hip replacement, and experienced tremors in her hands, David testified that he allowed Wilson to ride the horse. Furthermore, David never confirmed with Wilson's physician that such activity was safe or appropriate for a woman of her age or condition.

David testified that in December 2005, his brother died and defendant's boss lent David the money to cover funeral expenses. David testified that Wilson told defendant to write a check to repay the loan from defendant's boss. However, on cross-examination, David admitted that his brother actually died sometime in 2004.

David testified that in November 2005, Wilson paid for the bathroom in her home to be remodeled.

On cross-examination, David admitted that defendant was married to another man on January 16, 2004, the date that David witnessed Wilson sign a power of attorney. David testified that despite the fact that defendant was married to another man, he and defendant had been living together for 15 years at that time.

On re-direct examination, David testified that he was concerned that Wilson's relatives might place her in a nursing home and that Wilson's funds would be used to pay for that nursing home care.

The defense rested and the State called Dr. William Evans, a physician specializing in internal medicine, in rebuttal. Dr. Evans examined Wilson in May 2004 when she was admitted to Ingalls Hospital because family members had concerns about her altered mental status. Dr. Evans testified that Wilson "appeared to be demented" when he examined her at the hospital. Moreover, Dr. Evans testified it was his opinion that, with a reasonable degree of medical certainty, that Wilson suffered from dementia on May 26, 2004. He further testified that Wilson suffered from vascular dementia, ...


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