Where there was no evidence of defendant’s role in the creation of a counterfeit check on which she was payee, she did not become the maker of the instrument by endorsing it in her own name, and her conviction for forgery by making the check was reversed.
Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County, the Hon. William G. Lacy, Judge, presiding.
Michael J. Pelletier, State Appellate Defender, Alan D. Goldberg, Deputy Defender, and Benjamin A. Wolowski, Assistant Appellate Defender, of the Office of the State Appellate Defender, of Chicago, for appellant.
Lisa Madigan, Attorney General, of Springfield, and Anita Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg, Michelle Katz and Mary P. Needham, Assistant State’s Attorneys, of counsel), for the People.
Chief Justice Garman and Justices Karmeier, Burke, and Theis concurred in the judgment and opinion.
¶ 1 Following a bench trial in the circuit court of Cook County, defendant, Tiffany Brown, was convicted of several offenses, including forgery by making a counterfeit check (720 ILCS 5/17-3(a)(1) (West 2006)), forgery by delivering the check (720 ILCS 5/17-3(a)(2) (West 2006)), and attempted theft by delivering the check (720 ILCS 5/8-4, 16-1(a)(1)(A) (West 2006)). The appellate court, inter alia, upheld defendant's convictions for forgery by making the check and for attempted theft, and vacated the conviction for forgery by delivery. 2011 IL App (1st) 101391-U.
¶ 2 This court allowed defendant's petition for leave to appeal. Ill. S.Ct. R. 315 (eff. Feb. 26, 2010). Defendant challenges only her conviction for forgery by making the check. We now affirm in part and reverse in part the judgment of the appellate court and the judgment of the circuit court.
¶ 3 I. BACKGROUND
¶ 4 In August 2006, defendant was approximately 35 years old and had been a Chicago police officer for nearly seven years. Defendant's sister was Abeni Brown and defendant's mother was Zenobia Brown. Defendant maintained a checking account at the Chicago Patrolmen's Federal Credit Union (credit union).
¶ 5 On August 31, 2006, defendant entered the credit union and, while talking on her cell phone, presented to a teller, Samara Galvan, a letter, a check, a deposit slip, and identification. The letter purportedly related to a lawsuit in "the court room of Judge G. Imgram, " where the plaintiff was Abeni and the defendant was Six Flags Great America. The letter described an August 25, 2006, ruling in favor of Abeni in the amount of $3.5 million. The letter also designated as "beneficiaries" defendant, to receive $1 million; Zenobia, to receive $2 million; and defendant's cousin, Ahmad Murphy, to receive $500, 000. Further, the letter contained the signatures of "the clerk of Judge G. Imgram, " "Attorney at Law Susan T. Mitchell, " "Attorney at Law Bennetta C. Thompson, " and "CEO, Six Flags Great America[, ] Dr. Bryan D. Douglas."
¶ 6 The check, dated August 25, 2006, was purportedly drawn on the JPMorgan Chase bank account of Six Flags Great America, made payable to defendant in the amount of $1 million. The drawer's signature was "Bryan Douglas." On the reverse side, defendant endorsed the check with her signature and credit union member number. The check raised several red flags for Galvan. Initially, three sets of numbers were printed at the bottom of the check instead of the usual two, and none were the customary nine-digit routing number. Also, the texture of the check and the print font were atypical. Further, $1 million would typically be deposited by wire transfer and not by check.
¶ 7 Galvan left the teller window to speak with her manager, Maria Villasenor. Galvan showed Villasenor the letter, check, and deposit slip. Villasenor glanced at the check but did not observe its amount. She instructed Galvan to accept the check. Galvan also photocopied the letter and the deposit slip and kept them with the check. She returned to the teller window, where defendant was still talking on her cell phone. Defendant asked Galvan what was wrong, and Galvan responded that "everything was okay." Defendant told Galvan that her lawyer was on the phone and would speak to Galvan if there were a problem. Galvan responded that she did not need to speak to defendant's lawyer.
¶ 8 The following day, September 1, 2006, a credit union employee informed Villasenor that the credit union scanner would not accept defendant's check because it could not read the routing number. Villasenor instructed the employee to verify the routing number. The employee returned with the check and told Villasenor that the routing number was missing a digit. Villasenor looked closely at the check and saw that it was written in the amount of $1 million. She had never before seen a check for $1 million. During her banking career, Villasenor had received training in identifying counterfeit checks. She suspected that the purported business check was counterfeit based on the arrangement of the routing numbers, the texture of the paper, and the check's "rainbow" or "cotton candy" color.
¶ 9 Suspecting that the check was counterfeit, Villasenor telephoned JPMorgan Chase Bank, which confirmed that the check was not drawn on that bank. Villasenor then placed a permanent hold on defendant's deposit. According to Villasenor, the check had to go through the banking system to be stamped "counterfeit." Pursuant to credit union procedure, Villasenor sent a letter to defendant informing her that there was a permanent hold on her deposit.
¶ 10 On September 7, 2006, defendant telephoned Villasenor to ask what the letter meant. Villasenor told defendant that because the check was for such a large amount, a hold had been placed until the check cleared. Defendant told Villasenor that defendant won a lawsuit against Great America, and that someone from Great America was supposed to telephone the credit union to verify that the check was good. Defendant then told Villasenor that someone from Chase Bank was supposed to call the credit union. Defendant finally told Villasenor that she would instruct her lawyer to call Villasenor to inform her that the check was good. No one from Great America or Chase Bank, or any attorney, ever contacted Villasenor and told her that the check was good.
¶ 11 On September 11, 2006, the credit union's accounting department formally notified Villasenor that the check had been determined to be counterfeit. Villasenor called defendant on a speaker phone in the presence of the credit union's chief operating officer James Bedinger. Villasenor informed defendant that Chase Bank returned the check, and that the $1 million would be debited from her account. Defendant responded that Great America had filed for bankruptcy. Villasenor asked when did defendant learn that, to which defendant answered "this morning." Villasenor told defendant that Villasenor would have to debit the $1 million, to which defendant responded, "Well I'm going to have to sue Great America again then."
¶ 12 Chicago police detective Francisco Roman was assigned to investigate this case. He learned that: there was never a lawsuit filed or settled between Abeni and Great America; there was no one named Bryan Douglas at Great America; there were no licensed Illinois attorneys named Susan T. Mitchell or Bennetta C. Thompson; and Great America never issued any check to defendant or any member of her family. On September 27, 2006, Detective Roman arrested defendant for attempted theft and forgery by delivery. After her arrest, Detective Roman permitted defendant to use the telephone. Defendant indicated that she was going to call several persons including Zenobia and an attorney named Bennetta Thompson.
¶ 13 In November 2006, the original arrest charges were superceded by a seven-count indictment. Defendant was again charged with attempted theft by delivering the counterfeit check (count III) and forgery by delivering the check (count II), but also with forgery by making the check (count I). Defendant was additionally charged with three counts of official misconduct (720 ILCS 5/33-3(b) (West 2006)) predicated on the attempted theft and forgery charges (counts IV, V, and VI), and one count of official misconduct in that, by making the check, she violated a Chicago police department rule prohibiting conduct that brings discredit upon the department (count VII).
¶ 14 In October 2009, defendant waived a jury, and the court conducted a bench trial on all counts. The State's evidence adduced the above-recited facts. Detective Roman further testified that, in the course of his investigation, he discovered two police reports, dated early August 2006, identifying Abeni as an offender and defendant as the victim. Also, on cross-examination, Detective Roman testified that he was unable to find any evidence that defendant actually created the settlement letter or affixed any signatures thereto. Roman was likewise unable to find any evidence that defendant actually created the check or affixed thereto the signature of "Bryan Douglas" as the purported drawer.
¶ 15 Additionally, the parties stipulated that if Cynthia Reising were called as a witness, she would testify as follows. Reising is the comptroller of Six Flags Great America. Great America did not issue the purported check. The drawer address on the check was incorrect; the check was not drawn on a bank that Great America used; the check contained numbers that did not match any Great America account; any payment from Great America requires two signatures on a check; and Bryan Douglas was neither an authorized signatory nor even an employee of Great America. Further, employment records indicate that Abeni was employed at Great America from May 8, 2004, until June 11, 2004, when her employment was terminated for tardiness and unsatisfactory work.
¶ 16 The trial court admitted the State's exhibits without objection, and the State rested. Defendant moved for a directed finding of not guilty. Defendant argued that the State failed to present in its case in chief any evidence that she: (1) created the check, or (2) delivered the check to the credit union knowing that the check was counterfeit. The trial court denied defendant's motion as to all counts.
¶ 17 Defendant testified as follows. In addition to being a college graduate and a single mother of one son, she was raising her two nephews from her sister Abeni. She was raising Abeni's children because "more often than not" Abeni had not been in their lives due to her repeated legal problems. In 2005, Abeni was convicted and sentenced for forging defendant's name on a check for $80 and cashing it. She was released in 2006. Abeni was arrested again for buying an automobile and renting a condominium in defendant's name. Next, in early August 2006, Abeni went to the credit union wearing a wig to impersonate defendant, forged defendant's name, and withdrew $700 from an account jointly held by Abeni, Zenobia, and defendant. Abeni's name was thereafter removed from the account.
¶ 18 In late 2006, Zenobia told defendant that Abeni had settled a lawsuit against Great America, where defendant knew that Abeni had worked. Zenobia also told defendant that Abeni was dying, and that Abeni was distributing the settlement proceeds between Zenobia, defendant, Abeni's children, and defendant's cousin, Ahmad Murphy. Zenobia gave defendant the $1 million check payable to defendant and the settlement letter. Defendant testified that she was "in shock [b]ecause for the first time in Abeni's life she was going to do right by her children and right by my mother and myself." Defendant did not independently confirm any of this information; she accepted it at face value from her mother.
¶ 19 On August 31, 2006, with the settlement letter in hand, defendant went to the credit union to deposit the check in her checking account. Defendant believed that the letter was genuine. She denied creating the letter or affixing any signatures to it. Defendant likewise believed that the check was genuine. She did endorse the check. However, defendant denied that she created, or played any part in creating, the check. Defendant acknowledged that she was talking on her cell phone while depositing the check. Defendant testified that she was speaking to the purported attorney "Bennetta C. Thompson." Prior to the deposit, defendant and Zenobia had spoken with "Thompson" and "Susan T. ...