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People v. Owsley

Court of Appeals of Illinois

September 10, 2013

The PEOPLE of the State of Illinois, Plaintiff-Appellee,
v.
Donald OWSLEY, Defendant-Appellant.

Rehearing Denied Oct. 23, 2013.

Page 119

Jed Stone and Eric Shah, both of Stone & Associates, Ltd., of Waukegan, for appellant.

Anita M. Alvarez, State's Attorney, of Chicago (Alan J. Spellberg, Yvette Loizon,

Page 120

and Rachel Mabbott, Assistant State's Attorneys, of counsel), for the People.

[374 Ill.Dec. 673] OPINION

SIMON, Justice.

¶ 1 Following a bench trial, defendant Donald Owsley was found guilty of five counts of financial exploitation of an elderly person and one count of forgery and sentenced to three years' probation and a $36,000 fine. On appeal, defendant contends that the State failed to prove him guilty beyond a reasonable doubt of financial exploitation of an elderly person or forgery and that the fine is excessive. For the reasons that follow, we affirm.

¶ 2 BACKGROUND

¶ 3 Defendant was charged with six counts of financial exploitation of an elderly person in that he stood in a position of trust and confidence with Theodore Hoellen and knowingly and by deception obtained control over the Theodore Hoellen Trust dated January 31, 2002, the parcel of land at 5845 North Kenton Avenue in Chicago, a certificate of deposit account from Liberty Bank, a savings account from Harris Bank, a certificate of deposit account from Banco Popular, and Hoellen's retirement plan benefits with the intent to permanently deprive Hoellen of the use, benefit, or possession of those properties. Defendant was also charged with forgery and eight counts of official misconduct for committing the crimes of financial exploitation of an elderly person and forgery in his official capacity as an employee of the Chicago police department and violating the rules and regulations of the Chicago police department.

¶ 4 At trial, John Hoellen, Theodore Hoellen's nephew, testified that Theodore was born on December 30, 1913, and lived by himself in a house at 5845 North Kenton Avenue. John lived in Chicago until 1995, when he moved to Washington, D.C., and thereafter visited Theodore every fall when he returned to Chicago for homecoming weekend at Northwestern University. John called Theodore to check in on him once a month, but was only able to get in touch with him six to eight times a year. John formed some concerns about Theodore's faculties during his visits in 1999, 2000, and 2001 because Theodore seemed increasingly confused.

¶ 5 Theodore first mentioned defendant to John during John's visit in 2002. Theodore, who seemed agitated, also spoke of some documents he had signed and John and Theodore searched for the documents, but could not find them. While John was visiting, defendant let himself inside Theodore's house with a set of keys, and he and John exchanged information. Theodore asked defendant where the documents he had signed were located, and defendant responded that he did not know. John returned to Chicago in December 2002 and encountered defendant when he arrived at Theodore's house. John asked defendant about the documents Theodore had mentioned during the previous visit, and defendant told John that he would have to ask Theodore about them. Theodore told John that he did not know what defendant was talking about. John subsequently contacted the Office of the Public Guardian, which provided him with a quitclaim deed for Theodore's property and a general power of attorney regarding Theodore.

¶ 6 John later returned to Chicago, and on February 10, 2003, he accompanied Theodore to Harris Bank, where they removed defendant as a beneficiary on Theodore's checking account and executed a revocation of power of attorney, a revocation of will, a revocation of trust, and a trustee deed. On February 11, 2003, John [374 Ill.Dec. 674]

Page 121

and Theodore went to Liberty Bank and closed an account under which defendant had been named as a beneficiary and opened a new account under Theodore's name. On February 19, 2003, John learned that an order of protection had been sought against him by Theodore. John returned to Chicago, and on February 28, 2003, the day on which he was to appear in court, John picked up Theodore, who did not know about the court date, and brought him to the hearing. As a result of the hearing, the court ordered an evaluation of Theodore, and on March 31, 2003, John learned that Theodore had been taken to the hospital. Theodore was subsequently transferred to a nursing home, and he died on July 12, 2006.

¶ 7 Peter Schmiegel, the deputy of the adult guardianship division of the office of the Cook County public guardian, testified that the division conducted an investigation of Theodore and determined that he was a disabled adult, that the public guardian was named as the guardian of Theodore's person and estate and filed a citation to recover assets against defendant on his behalf, and that Schmiegel deposed defendant and cross-examined him at trial as part of that proceeding. Schmiegel then testified regarding the testimony provided by defendant at the deposition and trial. Defendant testified that he first met Theodore in the fall of 1999 while responding to a call from Theodore's neighbor's house and that he visited Theodore with increasing regularity as they became friends. In early 2001, Theodore told defendant that he wanted to convey his house to defendant by a quitclaim deed and on February 10, 2001, defendant and Theodore executed a deed granting defendant a joint tenancy interest in Theodore's house in the presence of various witnesses. Defendant did not have the deed notarized or recorded until August 2003 because Theodore told him not to record it and to just hold on to it. On April 17, 2001, defendant and Theodore executed a document granting defendant a power of attorney for health care for Theodore and on May 25, 2001, they executed a document granting defendant a general power of attorney. Defendant and Theodore executed a will and trust on January 31, 2002, after having met with Warren Dulski, an attorney, because Theodore wanted defendant to be the recipient of his property. By the end of 2001, defendant, consistent with Theodore's wishes, had been placed on all of Theodore's accounts at Liberty Bank, Harris Bank, and Banco Popular. Defendant sought an order of protection against John Hoellen after he was removed from the Harris Bank account on February 10, 2003, and filled out a petition for such an order, which Theodore then signed. Defendant further testified that on August 1, 2003, he had Alvero Guerrero, a notary public, notarize the quitclaim deed from February 10, 2001, and the accompanying statement by grantor and grantee, which was signed by defendant and Guerrero.

¶ 8 Patricia Walsh testified that she worked at a restaurant at which Theodore had eaten about twice a day. Walsh waited on Theodore almost every day. Beginning in 1998, she noticed that Theodore sometimes talked to himself or had conversations with people that did not exist and did not always change his clothes. Beginning in 2001, Walsh noticed that defendant joined Theodore for meals a couple times a week and that Theodore's demeanor was different when he was with defendant from when he was at the restaurant by himself because he sometimes seemed agitated when he was ...


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