Rehearing denied: September 7, 2017
from the Circuit Court of Lake County, No. 13-CF-757; the
Hon. Daniel B. Shanes, Judge, presiding.
Michael J. Pelletier, Thomas A. Lilien, Jessica W. Arizo, and
Yasemin F. Eken, of State Appellate Defender's Office, of
Elgin, for appellant.
Michael G. Nerheim, State's Attorney, of Waukegan
(Patrick Delfino, Lawrence M. Bauer, and Victoria E. Jozef,
of State's Attorneys Appellate Prosecutor's Office,
of counsel), for the People.
JUSTICE ZENOFF delivered the judgment of the court, with
opinion. Justices Burke and Birkett concurred in the judgment
1 Defendant, Beverly Bensen,  appeals her conviction of
aggravated identity theft (720 ILCS 5/16-30(b)(1) (West
2012)) following a jury trial in the circuit court of Lake
County. Defendant was also convicted of one count of theft
(720 ILCS 5/16-1(a)(1)(A) (West 2012)) and two counts of
financial exploitation of an elderly person (720 ILCS
5/17-56(a) (West 2012)). Those convictions were merged with
the aggravated-identity-theft conviction. We reverse the
conviction of aggravated identity theft and remand with
instructions to reinstate the convictions of theft and
financial exploitation of an elderly person and to sentence
defendant on those convictions.
2 I. BACKGROUND
3 The victim, John Cuneo, Jr., was approximately 80 years old
when he hired defendant as his personal secretary in
September 2011. He later also made her his office manager.
The nature of Cuneo's business was not made clear in the
record but he owned the "Hawthorn Corporation, "
which was headquartered in Grayslake, Illinois. In the
winter, Cuneo lived in Florida.
4 One of defendant's duties was to pay Cuneo's
corporate and personal bills. Defendant examined the bills
and then made out the checks. She presented the checks for
Cuneo's signature. Different checking accounts were used,
depending upon the nature of each bill.
5 Cuneo furnished defendant with an American Express credit
card that was to be used only for corporate business. The
credit card account, ending in 91008, was in the names of
both defendant and the corporation. The card that was issued
to defendant bore a number that ended in 14611, and that
number identified defendant as the cardholder.
6 In December 2012, following a telephone call from his bank,
Cuneo retained a retired police detective, Michael Aiardo, to
investigate defendant's possible misuse of the American
Express card beginning the previous May. On March 21, 2013,
Aiardo's investigation caused the Lake County State's
Attorney to charge defendant in an information with one count
of aggravated identity theft (count I), four counts of
financial exploitation of an elderly person (counts II-V),
and one count of theft (count VI). At trial, the parties and
the judge agreed to submit only two verdict forms pertaining
to the offense of financial exploitation of an elderly
person, as two of the counts were duplicates.
7 Count I alleged that defendant knowingly "used
personal identifying information of Cuneo, a person over the
age of 60, being an account number, to fraudulently obtain
goods." The matter was tried before a jury in September
2014. At trial, the State argued that defendant's
unauthorized use of the American Express card with her name
on it constituted the crime of aggravated identity theft.
8 The following evidence was adduced at trial. Aiardo had
worked for Cuneo as a driver and personal assistant from
April to October 2012. In several conversations during this
period, defendant indicated to Aiardo that Cuneo signed
checks without realizing how much money he had. Then, in
December 2012, defendant told Aiardo that she charged ...