No. 2-15-0085 Opinion filed August 4, 2017 ____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Lake County. ) Plaintiff-Appellee, ) ) v. ) No. 13-CF-757 ) BEVERLY BENSEN, ) Honorable ) Daniel B. Shanes, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________

JUSTICE ZENOFF delivered the judgment of the court, with opinion. Justices Burke and Birkett concurred in the judgment and opinion.

OPINION

¶1 Defendant, Beverly Bensen, 1 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

1 In the record, defendant’s name is also listed as “Benson.” We use the name that she

gave in her testimony.

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.

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¶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 some personal items on

Cuneo’s account, she was in trouble, and she did not know what to do.

¶9 Aiardo testified that Cuneo’s housekeeper, Mary Johnson, who later married Cuneo, and

Maria Hernandez, another employee, bought food for Cuneo’s household. Aiardo had never

seen defendant purchase groceries for Cuneo. Yet, in examining the bills incurred at Sunset

Foods, an upscale market, Aiardo discovered that defendant had charged $3,131.98 worth of

groceries. Aiardo also examined Cuneo’s American Express account and found that defendant

charged $24,498.63 worth of goods, including makeup, perfume, clothes for her daughter, two

iPads, a student computer, Xbox subscriptions, gaming systems, DVDs, and CDs. Defendant

also charged a payment to the University of Illinois, where her son was a student. Defendant

took her son to Cuneo’s dentist and charged the dentist visit to the American Express card.

Aiardo particularly noted a one-day shopping spree at Woodfield Mall in October 2012,

participated in by defendant, her daughter, Johnson, and Johnson’s daughter. Defendant charged

thousands of dollars’ worth of merchandise on that day to the American Express card.

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¶ 10 The American Express records in evidence showed that, on different occasions,

defendant charged over $800 in one visit to Bed, Bath & Beyond and $80 in one visit to

Starbucks. There were charges from restaurants, T-Mobile, Macy’s, Petco, Target, Home Depot,

Godiva Chocolates, and a charge for $1,665.49 from Hobby Lobby, among others.

¶ 11 Aiardo testified that defendant rented a house from Cuneo pursuant to a written lease.

The rent was $1,080 per month. According to the lease, defendant was to pay for the utilities.

Due to defendant’s financial difficulties, Cuneo reduced the rent to $540 in lieu of giving

defendant a raise. Apparently, the parties executed a second lease reflecting this change. Bank

records showed that defendant made one rent payment. She filled out deposit slips indicating

that other rent payments were made, but there were no corresponding deposits of money into

Cuneo’s account. Bank records also showed that some of defendant’s ComEd bills were paid

from Cuneo’s account. According to Aiardo, the leases disappeared, even though all of Cuneo’s

other leases were in the proper filing cabinet.

¶ 12 Cuneo testified that he did not authorize defendant’s Sunset Food charges. He also

testified that he did not authorize defendant to charge her personal items on the American

Express card. In December 2012, when Cuneo asked defendant to send the financial records to

him in Florida, defendant called him and said that she had done nothing wrong but that, if he

suspected that she did, she would reimburse him. Regarding the Woodfield shopping trip, Cuneo

authorized Johnson’s purchases for Johnson and her daughter, but not defendant’s purchases for

her and her daughter.

¶ 13 Defendant testified that Cuneo authorized every charge, including the Sunset Foods

charges. Defendant justified the food purchases as relating to her duties, as she had to take over

many responsibilities that used to be done by others. According to defendant, Johnson, with

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Cuneo’s permission, authorized defendant’s purchases during the Woodfield outing. Defendant

testified that the two iPads that she purchased were for business purposes. She further testified

that Cuneo forgave her rent obligation when she told him that her financial straits were dire.

According to defendant, Cuneo also authorized her to charge her son’s dentist visit. Defendant

claimed that, as a single mother, she could not afford a dentist. She pointed out that Cuneo was

worth “hundreds of millions.” Defendant admitted that she disguised the amounts of the

monthly American Express bills by getting weekly balances online and presenting those to

Cuneo for payment. On cross-examination, when the prosecutor asked her why she kept the two

iPads after her employment was terminated, defendant stated that she kept them for

“safekeeping.” Defendant had no explanation for why the leases went missing, even though she

was the office manager and no other leases were missing. She testified that the utilities for her

house were never in her name and that Aiardo had them put in her name after she was fired.

¶ 14 Defendant’s daughter, Tiffany Bensen, testified that she thanked Cuneo for all of the

purchases from the Woodfield spree and that he waved her off, as if approving them.

¶ 15 The State offered, without defendant’s objection, non-Illinois Pattern Jury Instructions

relating to the charge of aggravated identity theft. The instructions omitted the mental state of

knowledge (see 720 ILCS 5/16-30(a)(1) (West 2012)) and the definition of knowledge. The jury

found defendant guilty of all charges. The court granted defendant’s posttrial motion in part and

reduced the class of felony associated with each conviction. Finding that defendant fraudulently

obtained more than $300 from Cuneo, the court reduced the conviction of aggravated identity

theft from a Class 1 felony to a Class 2 felony, reduced the theft conviction to a Class 3 felony,

and reduced the financial-exploitation convictions to their “appropriate classifications.”

According to section 17-56(b) of the Criminal Code of 2012 (720 ILCS 5/17-56(b) (West 2012)),

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the appropriate classification is a Class 3 felony. The court merged the theft and financial-

exploitation convictions into the aggravated-identity-theft conviction and sentenced defendant to

24 months’ probation, 18 months’ periodic imprisonment, and 100 hours of public service. The

court also ordered defendant to pay restitution in the amount of $6,383.18. Defendant filed a

timely appeal.

¶ 16 II. ANALYSIS

¶ 17 Defendant contends that she was not proved guilty of aggravated identity theft beyond a

reasonable doubt, because the State failed to prove that she used the personal identifying

information of “another person.” In the alternative, defendant asserts that she is entitled to a new

trial because the jury instructions on aggravated identity theft omitted the mental state required to

commit that offense.

¶ 18 To sustain a conviction, the State must prove every element of an offense beyond a

reasonable doubt. People v. Steele,

. When a defendant

challenges the sufficiency of the evidence, the reviewing court must determine whether, viewing

all of the evidence in the light most favorable to the State, any rational trier of fact could have

found the elements of the crime beyond a reasonable doubt. People v. Collins,

(2005).

¶ 19 A person commits aggravated identity theft when he or she commits identity theft against

a person 60 years or older. 720 ILCS 5/16-30(b)(1) (West 2012). A person commits identity

theft when he or she knowingly uses any personal identifying information of “another person” to

fraudulently obtain credit, money, goods, services, or other property. 720 ILCS 5/16-30(a)(1)

(West 2012). Defendant does not dispute that Cuneo was over 60 years of age. She also does

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not dispute that she fraudulently obtained goods. However, defendant claims that she did not use

any personal identifying information of “another person” to accomplish her schemes.

¶ 20 “Personal identifying information” includes the number assigned to a person’s credit

card. 720 ILCS 5/16-0.1 (West 2012). The statute does not define “another person.” In this

case of first impression, defendant asks us to construe “another person” as meaning that the name

and number on a credit card must identify someone other than the accused as the cardholder. We

review issues of statutory construction de novo. People v. Hart,

(2000).

¶ 21 The primary goal in construing a statute is to ascertain and give effect to the intent of the

legislature. Hart,

. We achieve this goal by giving the statutory language

its plain and ordinary meaning. Hart,

. Where the language is clear and

unambiguous, no further aids of statutory construction will be applied. Hart,

. Dictionaries can be used to discern the ordinary and popular definitions of words. People

v. Ellis,

(1998).

¶ 22 Here, the facts are undisputed. The number on the American Express credit card that

Cuneo furnished to defendant corresponded to defendant’s name. Indeed, Aiardo referenced the

number on that card to identify the goods that defendant purchased using the card.

¶ 23 Defendant contends that she used her own “personal identifying information”—her own

credit card number—and that, therefore, the State failed to prove that the credit card number

belonged to “another person.” While the statute does not define “another person,” “another” is

defined as “one other than oneself.” Webster’s Third New International Dictionary 89 (1993).

Additionally, the gravamen of the crime of identity theft is misrepresenting oneself as someone

else. People v. Montoya,

(2007). In Montoya, the defendant, who

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obtained employment using someone else’s name and Social Security number, argued that she

did not fraudulently obtain money or services, because she earned the wages and insurance

benefits she received as part of her employment. Montoya,

. In affirming

the conviction, this court acknowledged that the defendant did not steal from her employer, but

we nevertheless held that she was guilty of identity theft, because she obtained her employment

by misrepresenting herself as someone else. Montoya,

. In

criminalizing identity theft, the legislature recognized the burden that misappropriating someone

else’s identity places on the economy. Montoya,

. In Montoya, we noted

that the person whose identity the defendant assumed was caused numerous financial difficulties

as a result of the defendant’s impersonation. Montoya,

. Thus, to be guilty

of identity theft, a defendant must knowingly misappropriate someone else’s identity, not just

obtain goods in an unauthorized manner.

¶ 24 Indeed, a defendant who uses his or her own personal identifying information to commit

a crime of deception is not guilty of identity theft. In State v. Zibulsky,

(Or.

Ct. App. 2014), the Oregon Court of Appeals reversed the defendant’s conviction of identity

theft where she withdrew funds from an account that she jointly owned with her father. The

State contended that the defendant unlawfully appropriated her father’s identity when she

withdrew the funds, but the court pointed out that the defendant did not use any personal

identifying information that was “not hers to use.” Zibulsky,

.

¶ 25 Also, a defendant who benefits from another’s identity, but who does not misappropriate

it, is not guilty of identity theft. In State v. Ritter,

(Or. Ct. App. 2016), the

Oregon Court of Appeals reversed the defendant’s conviction of identity theft, holding that the

crime contemplates that the accused has acquired or claimed the “personal identification” of

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another person by possessing or exercising some control over it. Ritter,

. In

Ritter, the defendant, an inmate who was prohibited from contacting his girlfriend, had a

cellmate make a telephone call to the defendant’s girlfriend, using the cellmate’s personal

identification number (PIN). Ritter,

. After the cellmate successfully placed the

call, he handed the telephone to the defendant. Ritter,

. The State argued that,

by taking the telephone from his cellmate, the defendant converted the cellmate’s PIN for his

own use. Ritter,

. In rejecting the State’s argument, the court of appeals noted

that the defendant did not possess or exercise control over the cellmate’s PIN. Ritter,

.

¶ 26 As the court in Zibulsky noted, identity theft criminalizes the use of another person’s

personal identification, but not one’s own. Zibulsky,

. As in Zibulsky, defendant

used her own credit card number to make the unauthorized purchases. As in Ritter, defendant

did not exercise any control over a credit card number that was issued in someone else’s name.

¶ 27 Defendant relies on State v. Cotton, 2015-1623 (La. Ct. App. 2016);

. In

Cotton, the court held that the State failed to prove the defendant guilty of identity theft where he

used a company credit card to fraudulently obtain money. Cotton, 12015-1623, p.2 . The court

reasoned that the card contained a number that uniquely identified the defendant as the

cardholder; therefore, the defendant did not use the personal identifying information of another

person, as required by the Louisiana statute. Cotton, 2015-1623, p.11.

¶ 28 In Cotton, the defendant’s employer, Grady Crawford Construction (Grady), allowed the

defendant the use of the credit card to purchase fuel for company vehicles only. Cotton, 2015-

1623, pp.3-4. The defendant’s name and that of Grady were imprinted on the card. Cotton,

2015-1623, p.3. While Grady was identified by the account number under which the card was

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issued, the card itself contained a number that uniquely identified the defendant as the

cardholder. Cotton, 2015-1623, p. 11. The defendant used the card to fill other motorists’

vehicles with fuel, and then he intimidated the motorists into giving him cash. Cotton, 2015-

1623, pp. 2-3. The State argued that the defendant was guilty of identity theft, because Grady

was “another person” and was ultimately responsible for paying the credit card bills. Cotton,

2015-1623, p.9.

¶ 29 Louisiana’s identity-theft statute is substantially similar to ours: “[i]dentity theft is the

intentional use or possession or transfer or attempted use with fraudulent intent by any person of

any personal identifying information of another person” to obtain goods. Cotton, 2015-1623, p.

8;

(B). However, the Louisiana statute defines “another” person:

“ ‘[a]nother’ refers to any other person or legal entity.” Cotton, 2015-1623, p. 10;

(A)(1). The court of appeal agreed with the State that Grady was identified by the account

number, but it emphasized that the card itself contained a number that uniquely identified the

defendant as the cardholder. The court also noted that the card required the use of a PIN, which

was possibly known only by the defendant. Cotton, 2015-1623, p. 11. Under these facts, the

court concluded that the card personally identified the defendant in more ways than it did “any

other person.” Cotton, 2015-1623, p. 11.

¶ 30 Cotton is virtually indistinguishable from our case. Where there is no Illinois authority

on a particular issue, we may look to the decisions of courts of foreign jurisdictions to provide

persuasive authority for our analysis. In re Estate of Zenkus,

(2004).

In our case, defendant was charged with “knowingly using the personal identifying information

of Cuneo, being his account number.” As in Cotton, both defendant and Cuneo’s corporation

were on the American Express account, but the credit card that defendant used to fraudulently

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obtain goods identified defendant as the cardholder. Put simply, when defendant charged her

unauthorized purchases, she used the business credit card issued in her own name. Thus, she did

not misrepresent herself as someone else.

¶ 31 Indeed, the State concedes the correctness of this analysis. Nevertheless, the State

contends that defendant’s use of Cuneo’s checking account numbers to later pay for the

fraudulent charges constituted aggravated identity theft. The evidence showed that defendant

prepared the checks and presented them to Cuneo for his signature. We need not decide whether

that activity satisfies the elements of identity theft, because the State did not proceed on that

theory at trial. The State argued to the court in pretrial motions, and to the jury, solely that

defendant committed identity theft by exceeding her authority when she used the credit card for

personal purchases. We cannot consider the State’s alternative argument, as it violates due

process for the State to change its theory of prosecution on appeal. People v. Crespo,

(2001). Accordingly, we reverse defendant’s conviction of aggravated identity theft.

We remand this cause with instructions to reinstate the convictions of theft and financial

exploitation of an elderly person, all Class 3 felonies, and to sentence defendant on those

convictions. In light of our holding, we do not reach defendant’s contention regarding the jury

instructions.

¶ 32 III. CONCLUSION

¶ 33 For the reasons stated, we reverse defendant’s conviction of aggravated identity theft, and

we remand for the circuit court of Lake County to reinstate the convictions of theft and financial

exploitation of an elderly person and to sentence defendant on those convictions.

¶ 34 Reversed and remanded.

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