People v. De Filippo

Opinion

No. 2--07--0470 Filed: 12-10-08 ______________________________________________________________________________

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. 05--CF--2747 ) CHARLES De FILIPPO, ) Honorable ) James K. Booras, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________

JUSTICE BOWMAN delivered the opinion of the court:

Following a jury trial, defendant, Charles De Filippo, was convicted of two counts of forgery

(720 ILCS 5/17--3(a)(1) (West 1998); 720 ILCS 5/17--3(a)(1) (West 2002)) and sentenced to two

years' probation. On appeal, defendant argues that: (1) he was not proven guilty of forgery beyond

a reasonable doubt; (2) the trial court improperly instructed the deadlocked jury to continue to

deliberate, instead of declaring a mistrial; and (3) one of his convictions must be vacated because he

is alleged to have committed only one act of forgery. We reverse.

I. BACKGROUND

A. Indictment

Defendant and a codefendant, Lawrence Lesza, were indicted on July 27, 2005, for

fraudulently attempting to secure additional pension credit for defendant under the Sheriff's Law

Enforcement Program (SLEP). The State generally alleged that, although defendant became eligible No. 2--07--0470

for SLEP in September 1984, he submitted documents falsely stating that he became eligible in

November 1981, in order to secure benefits to which he was not entitled.

The indictment contained seven counts. Count I charged defendant and Lesza with

conspiracy (720 ILCS 5/8--2 (West 2002)) to commit theft of over $100,000 (720 ILCS 5/16--1(a)

(West 2002)) and/or forgery (720 ILCS 5/17--3(a)(1) (West 2002)). The theft consisted of

submitting documents, including a letter delivered in August 2003, in which they knowingly falsely

stated that defendant became a sworn deputy of the Lake County sheriff's office in November 1981.

The forgery similarly consisted of preparing the letter delivered in August 2003.

Count II charged defendant and Lesza with attempted theft of property worth more than

$100,000 (720 ILCS 5/8--4(a) (West 2002)) for sending a letter dated August 12, 2003, that falsely

stated that defendant became a sworn deputy in November 1981.

Count III charged defendant and Lesza with forgery (720 ILCS 5/17--3(a)(1) (West 1998))

for making a document on or about August 26, 1999, in which they knowingly falsely stated that

defendant was sworn as a deputy in November 1981.

Count IV charged defendant with forgery (720 ILCS 5/17--3(a)(1) (West 1998)) for writing

a letter on or about March 29, 1999, addressed to Sheriff Gary Del Re, in which, with the intent to

defraud, defendant falsely stated that: (1) on November 16, 1981, he was deputized at the Lake

County clerk's office; (2) during May 1982, Lesza, the director of corrections, requested his deputy

badge and explained that his employment status had been reclassified as a correctional officer; and

(3) he worked for the "Warrants Division, Correctional Division and Special Details for the

Department" between November 16, 1981, and May 1982.

-2- No. 2--07--0470

Count V charged defendant with forgery (720 ILCS 5/17--3(a)(1) (West 2002)) for, on or

about August 12, 2003, submitting a copy of the March 29, 1999, letter.

Count VI charged defendant with forgery (720 ILCS 5/17--3(a)(1) (West 2002)) for, on or

about August 12, 2003, altering a copy of the March 29, 1999, letter by deleting two sentences.

Count VII charged defendant with forgery (720 ILCS 5/17--3(a)(1) (West 2000)) for, on or

about February 15, 2000, knowingly falsely stating in a letter to Jerry Nordstrom, an Illinois

Municipal Retirement Fund (IMRF) representative, that he was deputized on November 16, 1981.

B. Trial

Defendant and Lesza were jointly tried in a jury trial lasting nine days. We summarize the

relevant testimony below. Del Re testified as follows. He was the Lake County sheriff from October

1996 to November 2006. Lesza was the director of the jail and defendant was the deputy director

of the jail. Defendant had indicated to Del Re that he believed that he had earned additional service

credits under SLEP.

Defendant gave Del Re a letter dated March 29, 1999.1 The letter was addressed to Del Re

and stated:

"As we discussed, I am requesting that you intervene for me to obtain thirty two (32)

months of Sheriff's Law-Enforcement Retirement service toward my retirement account. The

following information is an outline of the service in question and the contacts which I have

coordinated.

• Saturday, November 14, 1981, I started my employment with the Lake County

Sheriff's Department. The following Monday, November 16, 1981, the Director of

1 This letter is relevant to counts IV, V, and VI.

-3- No. 2--07--0470

Corrections, Lawrence Lesza, as ordered by then Sheriff Thomas Brown, instructed me to

fill out the provided documentation to be deputized. Consequently, on November 16, 1981,

I was deputized at the Lake County Clerk's Office.

• Because I was not a Correctional Officer who originally had the Deputy's status

revoked, I remained deputized for the duration of my employment. During May 1982, the

Director of Corrections, Lawrence Lesza, requested my deputy badge and explained that they

had reclassified my employment status with the Lake County Sheriff's Office as a Correctional

Officer. Note: Between November 16, 1981 and May 1982, I worked for the Warrants

Division, Correctional Division, and special details for the Department.

• On September 14, 1984, I was again sworn as deputy under the direction of then

Sheriff Robert Babcox. My responsibilities were External Transportation, mental health

community arrests, serving warrants and special details.

Consequently, a lawsuit was filed against the County of Lake involving the deputy's

status of approximately a dozen employees. At that time I did not allow myself to be named

as a litigant of the lawsuit. After the ruling in favor of the employees, they automatically

adjoined each person falling under this special deputy's status as a litigant. The ruling

specifically related to the Sheriff's Law Enforcement Retirement Fund and an Appellate Court

order to place each deputy under the fund.2

2 In Roche v. County of Lake, 205 Ill. App. 3d 102, 115 (1990), this court held that SLEP

applies to "any person sworn by the sheriff as a deputy and paid full time to act at the direction of the

sheriff," even if the employee did not "participate in law enforcement duties on a daily basis." We

further held that the plaintiffs were "entitled to participate in the sheriff's pension plan from the time

-4- No. 2--07--0470

As it became necessary to identify each employee and the date that they became

deputized, then Sheriff Clinton Grinnell submitted a letter for each employee that identified

the date to start the S.L.E.P. Retirement. In my case, they identified the S.L.E.P. start date

as September 14, 1984. Until recently, I was under the impression that my S.L.E.P. date had

started on November 16, 1981. Because of this, thirty-two months do not fall under S.L.E.P.

and only apply toward I.M.R.F.

After researching the scenario, it would appear that not only could the Lake County

Clerk's Office personnel not find my deputy papers from 1981, but they failed to find the

papers from 1984, as well. It would also appear that Sheriff Grinnell retrieved a blank form

and filled it out for the 1984 date and sent it to S.L.E.P.

After contacting S.L.E.P. personnel and discussing the error with them, they advised

me that they would need paper work from the County Sheriff stating that the time reflected

is not correct. Also, I spoke with Mr. Daniel Field[] (County attorney defending the case for

the County of Lake), and he advised that the Sheriff could correct the date with a letter.

It is important to emphasize, during my early months of employment with the Lake

County Sheriff's Department, they temporarily assigned me to the Warrants Division, and

Civil Process. Therefore, my duties were that of a Deputy Sheriff.

I spoke with several other litigants that received S.L.E.P. based on the mentioned

lawsuit trying to identify any other person this decision would effect [sic]. Clearly, no other

person could allege to have been deputized before the time they received the S.L.E.P.

they were employed full-time by the sheriff's office and sworn as deputies." Roche, 205 Ill. App. 3d

at 115.

-5- No. 2--07--0470

benefits. Therefore, my request is isolated and would not encompass researching other cases.

During the onset of this concern I decided not to breach the subject in writing based on

Sheriff Grinnell's lack of interest, and was coordinating with I.M.R.F. in an effort to determine

the proper retirement date based on the September 14, 1984 date. However, after further

research it became appearent [sic] the serious impact this date has on my retirement ability

and pension security under S.L.E.P. verses [sic] I.M.R.F.

Obviously, this request would need to be supported by you and the County of Lake.

Then a letter would need to be sent to I.M.R.F. outlining the actual date that S.L.E.P should

have taken affect [sic]. It is extremely important that this request be taken into consideration

by both you and the County of Lake. The reflection of the actual time I have spent as a

deputy impedes my ability to lock in twenty years of service on November 16, 2001. Though

I do not plan to retire from the department then, the additional months of service will have

a serious impact on the financial aspect of my retirement. Lastly, to lock in my retirement on

the correct date will ease the apprehension that most feel in a politically appointed position.

I sincerely appreciate your efforts involving this matter and am available to answer any

questions you may have." (Emphases added.)

The letter was copied to "Undersheriff Gary Stryker," "Director of Corrections, Lawrence Lesza,"

and "File."

Del Re initially did not take any action. He later received from Lesza a notarized letter dated

August 26, 1999.3 It stated:

3 This letter is the subject of count III.

-6- No. 2--07--0470

"On November 14, 1981, Charles M. De Filippo became an employee by the Lake

County Sheriff's Department. On the following Monday, November 15, 1981, or November

16, 1981, under the direction of Sheriff Thomas Brown, I personally escorted Charles M. De

Filippo to the Lake County Clerks Office. It was on this date that Charles M. De Filippo was

sworn in as a Lake County Sheriff's Deputy.

My position with the Lake County Sheriff's Department was that of the Jail

Superintendent on the date that I witnessed Charles M. De Filippo[] take his oath of office

as a Deputy Sheriff with the Lake County Sheriff's Office.

I swear under oath that the above statement is true and correct and that I was acting

officially as the Lake County Jail Superintendent, and under the direction of Sheriff Thomas

Brown."

Based on the letters from defendant and Lesza, Del Re wrote a letter in support of defendant,

dated September 7, 1999, to the director of human resources. Del Re wrote another letter on

defendant's behalf on February 8, 2000. It was addressed to Jerry Nordstrom, manager of employee

benefits. Del Re noted that IMRF was requesting a certified copy of the 1981 indemnity bond sheet

that would have been issued when defendant became a deputy. Del Re stated that Willard Helander,

the Lake County clerk, had informed his office that records of indemnity bond sheets from the early

1980s were routinely destroyed, pursuant to statute, which made it impossible to produce original

records. Del Re stated that he and defendant had provided IMRF with all of the information

necessary to support their position.

After Lesza retired from the sheriff's department, Del Re promoted defendant to director of

the jail. Sometime in 2000, IMRF granted defendant the additional 32 months of SLEP credit. In

-7- No. 2--07--0470

July 2003, Del Re asked defendant to resign from the department for reasons unrelated to SLEP.

Within one month of defendant's resignation, a former correctional officer who had been fired made

a complaint that defendant had illegally obtained SLEP credit. Del Re asked defendant to "provide

any additional information or summarize the conditions in which he claimed to have worked in a

sworn capacity, so [Del Re] could further review any additional facts that might be pertinent once that

information was revealed." Del Re received a letter via fax from defendant on August 12, 2003.4 The

letter appeared to be a copy of the March 29, 1999, letter.

Del Re did not compare the two letters at the time, but he did compare them in preparation

for trial. The faxed copy had omitted the following sentences:

"During the onset of this concern I decided not to breach the subject in writing based on

Sheriff Grinnell's lack of interest, and was coordinating with I.M.R.F. in an effort to determine

the proper retirement date based on the September 14, 1984 date. However, after further

research it became appearent [sic] the serious impact this date has on my retirement ability

and pension security under S.L.E.P. verses [sic] I.M.R.F."

Del Re had copies of the original letter in various files. The omission in the fax did not cause Del Re

to feel that "anything was being put over on" him. The fact of the omission was "unusual," but Del

Re was "not sure that it meant a great deal" and was "not sure what to make of that."

Several correctional officers testified that they were assigned to a newly created jail transport

unit in summer 1984, along with defendant. Before the formation of the unit, the warrants division

generally transported inmates outside of the facility. The transport unit members were sworn in as

deputies on September 11, 1984. One correctional officer, Raul Aragon, testified that, in January

4 The letter faxed on August 12, 2003, forms the basis of counts I, II, V, and VI.

-8- No. 2--07--0470

1982, he was sworn in as a deputy sheriff because he signed up to work on the boat patrol unit one

night a week. The rest of the time, he was still working as a jailer. Aragon worked on the boat patrol

unit only from spring to fall 1982. He wore a five-pointed deputy star while on boat patrol and a six-

pointed star at the jail.

Various individuals who had worked in warrants and civil process between 1981 and 1983

testified that defendant never worked in or was assigned to those divisions during those years.

However, there was also testimony that, if the warrants division was closed and a prisoner was

delivered to the jail, a correctional officer would serve the warrant by pulling it and physically giving

a copy to the prisoner.

Thomas Brown testified as follows. He was the Lake County sheriff from 1978 to 1982, for

one term. He appointed Lesza as superintendent of the jail. When Brown first took office, everyone

who had deputy status had to be resworn as part of the standard procedure upon the election of a new

sheriff.

Brown had the power to appoint deputies and to revoke their deputy status. On December

31, 1980, he wrote a letter reflecting that he had decommissioned people working in the jail as deputy

sheriffs and reclassified them as jail officers. The deputy status had given them the authority to make

arrests, and Brown did not think that they had the training or qualifications for that authority.

Included on the list of people whose deputy status was revoked was Lesza. In 1981, therefore, jailers

were not being deputized.

A personnel action form showed that defendant was hired as a jail officer on November 14,

1981. Brown did not know defendant personally and did not recognize him. Brown never issued an

order to have defendant deputized in 1981. He would not have deputized defendant, because he had

-9- No. 2--07--0470

already decommissioned jail officers, and deputizing just defendant would have caused turmoil.

Brown agreed that, if there were a jailer who worked in boat patrol, he would have been deputized.

When he came back to the jail, he would serve as a correctional officer.

Jerry Nordstrom testified that he was the benefits manager for the Lake County human

resources office from March 1998 until December 2002. Nordstrom was the designated IMRF

representative for Lake County, and he became involved with defendant's request for more time under

SLEP. In drafting a letter endorsing defendant's request, Nordstrom relied on defendant's letter,

Lesza's statement, and Del Re's September 7, 1999, letter. Nordstrom had the authority to

recommend accepting or rejecting defendant's request, though IMRF made the ultimate decision.

Louis Kosiba, the Executive Director of IMRF, provided the following testimony. The IMRF

plan covers all Lake County employees, while the SLEP program covers only sheriffs and sheriff's

deputies. In 1990, an appellate court decision required IMRF to do some recalculations for certain

employees who were deemed entitled to additional SLEP credit, based on when they were first

deputized.5 Those who chose to accept the additional credit were required to make payments

reflecting the difference withheld from salaries under IMRF versus SLEP.

For defendant, the county provided IMRF with a bond executed on September 11, 1984, for

his deputization. Kosiba testified regarding an IMRF letter written to defendant dated March 15,

1991. The letter stated that Lake County had informed IMRF that defendant was sworn in and

eligible for SLEP coverage as of September 11, 1984. It stated that, if defendant believed that the

date was incorrect, he should contact IMRF. It also included a past-service payment schedule.

5 See Roche, 205 Ill. App. 3d 102.

-10- No. 2--07--0470

IMRF received a first remittance payment from defendant on June 24, 1991. He made some

additional payments after that. Kosiba found nothing in defendant's file to indicate that before 1999

he had contested the SLEP start of September 11, 1984. The first time IMRF was notified that

defendant was contesting the date was when it received a packet of documents from Nordstrom in

September 1999, regarding defendant's request for SLEP credit going back to November 14, 1981.

In a February 15, 2000, letter to Nordstrom,6 defendant wrote:

"In response to the questions posed by I.M.R.F. as outlined in your questions, please

note the following.

During 1991, after the court ruling placing the litigants under the S.L.E.P. retirement

fund, I received an unsigned and uncertified oath to sign. At that time I spoke with then

Sheriff Clinton Grinnell and explained that I was deputized in 1981. Sheriff Grinnell

explained that until I paid back all monies for past credits I would not receive the 32 months

of credit. It was during 1991 I started to make the identified payments for back credits. I

was under the impression that until all back payments were made the record would not reflect

all months of credit. Secondly, between 1991 and the time that Sheriff Grinnell left office,

on at least three occasions I spoke with him about the error and asked if he had a chance to

investigate it. As I explained to Sheriff Del Re, there came a point whereas I felt that my

concerns were getting ignored. Initially I was not extremely concerned with the 1984 date

because I had no intentions of retiring until the age of 50. However, I have since researched

and determined the impact that the 32 months would have on my overall retirement and my

ability to secure my required vestage [sic] on November 16, 1981. This is the reason that I

6 This letter is the basis of count VII.

-11- No. 2--07--0470

am now aggressively seeking the I.M.R.F. credits to be rightfully converted to S.L.E.P.

credits.

***

Clearly, I was deputized on November 16, 1981, and I am entitled to have the 32

months of I.M.R.F. credit converted to S.L.E.P. credits. I understand and appreciate the

concern of our I.M.R.F. representatives. However, I am equally concerned that our failure

to resolve this issue will affect my ability to secure my retirement under the current Sheriff's

administrative team."

The letter was copied to Del Re, Gary Stryker, Daniel Field, and "File."

In February 2000, based on the letters from defendant, Del Re, and Lesza, along with

Nordstrom's recommendation, Kosiba decided that, even though there was missing information, the

weight of the documentation favored granting defendant's request. Lake County would have had to

pay $634,675.07 to fully fund defendant's SLEP retirement benefits versus $290,650.40 to fund his

benefits under IMRF, a difference of $344,024.67. Defendant never actually began receiving benefits

under either plan, because he had not yet reached the age of eligibility.

Lesza testified as follows. Defendant began working as a jail officer on November 14, 1981.

Lesza had a meeting with Brown the week before defendant was hired. Brown was under criticism

for response times in the district, because officers would have to go to various other municipalities'

holding facilities to pick up detainees held on Lake County warrants and take them to the jail before

returning to the district. Anytime that an officer had to leave the district, he would not be available

to handle routine calls and respond to traffic situations. Lesza explained to Brown that he could

"resolve the issue" by designating a correctional officer on the second shift to be available as needed

-12- No. 2--07--0470

to pick up detainees. That position would require deputization. The problem occurred primarily

during the second shift because, during the day, the warrants division was able to pick up the

detainees.

The shift commander, who was deceased at the time of trial, did not want to designate a

seasoned jail officer for the responsibility of picking up detainees, because she was short-staffed. She

preferred that defendant take the position for that reason and because he had experience driving large

vehicles. Lesza discussed the shift commander's position with Brown. In November 1981, Brown

was preoccupied with his election, and he pretty much gave Lesza a free hand in running the jail.

On November 16, 1981, Lesza escorted defendant to the clerk's office to be sworn in as a

deputy sheriff. Lesza had agreed with Brown that defendant should wear his corrections badge on

the outside of his shirt and keep the deputy badge in his wallet, to reduce any friction that could occur

with other jailers. Defendant worked in the special transport position for three to six months, until

Sheriff Brown decided to revoke his deputy status. Lesza did not know who filled the special

transport role afterwards.

Richard Eckenstahler, the sheriff's department chief of operations, testified that, although the

Department had "radio cards," which are made each time a police officer or deputy is put on

assignment, dating back to the 1960s, Eckenstahler could not find any records that defendant

transported any prisoners between November 16, 1981, and May 31, 1982. Eckenstahler further

testified that he was with the highway patrol from 1979 until 1986 and was not aware of any serious

problems with prisoners sitting in local municipalities for extended periods of time.

C. Jury Verdict and Posttrial Proceedings

-13- No. 2--07--0470

The jury found defendant not guilty of counts I (conspiracy to commit theft or forgery), II

(attempted theft with respect to the August 12, 2003, faxed letter), III (forgery with respect to

Lesza's August 26, 1999, letter), and VII (forgery with respect to defendant's February 15, 2000,

letter to Nordstrom). It found defendant guilty of counts IV (forgery with respect to the March 29,

1999, letter), V (forgery with respect to the August 12, 2003, faxed letter), and VI (forgery with

respect to the August 12, 2003, faxed letter containing different provisions). The jury found Lesza

not guilty of all charges.

The trial court denied defendant's motion for a judgment of not guilty notwithstanding the

verdict or for a new trial. The trial court entered judgment on counts IV and V, finding that counts

V and VI merged under the one-act, one-crime rule. See People v. King, 66 Ill. 2d 551 (1977). It

sentenced defendant to 24 months' probation, 12 months' periodic imprisonment, and 200 hours of

community service. The periodic imprisonment was stayed pending performance on probation, and

the community service hours were stayed until defendant was medically able to perform them.

Defendant timely appealed.

II. ANALYSIS

Defendant first argues that he was not proven guilty of forgery beyond a reasonable doubt.

The standard of review for a claim of insufficiency of the evidence is whether, after viewing the

evidence in the light most favorable to the prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319,

61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789 (1979); People v. Collins, 106 Ill. 2d 237, 261 (1985).

The trier of fact has the responsibility to assess witnesses' credibility, weigh their testimony, resolve

inconsistencies and conflicts in the evidence, and draw reasonable inferences from the evidence.

-14- No. 2--07--0470

People v. Sutherland, 223 Ill. 2d 187, 242 (2006). We will reverse the trier of fact's decision only

if the evidence is so unsatisfactory, improbable, or implausible that it leaves a reasonable doubt

regarding the defendant's guilt. People v. Slim, 127 Ill. 2d 302, 307 (1989).

Section 17--3 of the Criminal Code of 1961 (720 ILCS 5/17--3(a) (West 2002)) states:

"(a) A person commits forgery when, with intent to defraud, he knowingly:

(1) makes or alters any document apparently capable of defrauding another

in such a manner that it purports to have been made by another or at another time, or

with different provisions, or by authority of one who did not give such authority: ***

(b) An intent to defraud means an intention to cause another to assume, create,

transfer, alter or terminate any right, obligation or power with reference to any person or

property. As used in this Section, 'document' includes, but is not limited to, any document,

representation, or image produced manually, electronically, or by computer.

(c) A document apparently capable of defrauding another includes, but is not limited

to, one by which any right, obligation or power with reference to any person or property may

be created, transferred, altered or terminated." 720 ILCS 5/17--3 (West 2002).7

The State argues that defendant's challenge to the sufficiency of the evidence must be analyzed

in the context of the jury instructions. The jury was instructed that "[a] person commits the offense

of Forgery when he, with intent to defraud, knowingly makes a document apparently capable of

7 The quoted portions of section 17--3 are identical to the 1998 version of the statute, which

applies to count IV, except that the 1998 version does not contain the second sentence in subsection

(b). 720 ILCS 5/17--3 (West 1998).

-15- No. 2--07--0470

defrauding another which made it appear that an event had occurred that did not occur." (Emphasis

added.) For most of the counts of forgery, the jury was also instructed:

"To sustain the charge of Forgery ***, the State must prove the following

propositions:

First Proposition: That the defendant knowingly made a document so that it appeared

that an event occurred which did not occur; and

Second Proposition: That the defendant did so with the intent to defraud; and

Third Proposition: That document was apparently capable of defrauding."8 (Emphasis

added.)

The first jury instruction differs from the Illinois Pattern Jury Instructions in that it uses the language,

"which made it appear that an event had occurred that did not occur," rather than, "so that it appears

to have been made [(by another) (at another time) (with different provisions) (by authority of one

who did not give such authority)]." Illinois Pattern Jury Instructions, Criminal, No. 13.39 (4th ed.

2000). Similarly, most of the instructions regarding the propositions that the State must prove for

forgery differ from the pattern instructions in that they state, "so that it appeared that an event

occurred which did not occur," rather than using the pattern instruction's language, "so that it

appeared to have been made [(by another) (at another time) (with different provisions) (by authority

of one who did not give such authority)]." Illinois Pattern Jury Instructions, Criminal, No. 13.40 (4th

ed. 2000).

8 For count VI, the jury was given a slightly different instruction in that the first proposition

stated that defendant "knowingly made or altered a document so that it appeared to have been [made]

with different provisions."

-16- No. 2--07--0470

The State argues that defendant forfeited review of any alleged errors in the jury instructions,

because he did not raise the issue at trial or in a posttrial motion. However, regardless of what the

jury instructions state, on a challenge to the sufficiency of the evidence, we must determine whether

a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

Jackson, 443 U.S. at 319, 61 L. Ed. 2d at 573, 99 S. Ct. at 2789. That leads to the question of what

are the essential elements of forgery.

Under the language of section 17--3, as applied to this case, the elements of forgery are: (1)

a document that is apparently capable of defrauding another; (2) the defendant made or altered the

document in such a manner that it purported to have been made by another person, at another time,

with different provisions, or by authority of someone who did not give such authority; and (3) intent

to defraud. 720 ILCS 5/17--3 (West 2002); see People v. Hockaday, 93 Ill. 2d 279, 282 (1982).

The parties note that the Committee Comments to section 17--3 state that "[t]he section

involves no change in the former law of Illinois, codifying the decisions of the Illinois Supreme Court

in several cases in regard to the common law and statutes on forgery in Illinois." 720 ILCS Ann.

5/17--3, Committee Comments--1961, at 408 (Smith-Hurd 2003). Where the plain language of the

statute clearly expresses the legislative intent, we do not need to resort to other interpretive aids, such

as Committee Comments. People v. Hari, 218 Ill. 2d 275, 295 (2006). Still, in light of the case law

cited by the State, we examine its argument further.

Citing the aforementioned Committee Comments and People v. Armes, 28 Ill. 2d 83, 86

(1963), the State argues that the only elements necessary to prove forgery are that a person made a

false document capable of defrauding another, with the intent to defraud. We note that Armes

-17- No. 2--07--0470

pertained to a 1955 forgery statute, prior to the 1961 recodification. Armes, 28 Ill. 2d at 86. As our

supreme court explained:

"Prior to the new Criminal Code separate statutes proscribed forgery of specified types

of instruments or documents. ***

As presently defined in the new Criminal Code, the offense of forgery codifies and

incorporates all forms of forgeries into a single crime. [Citation.] This new provision of the

Criminal Code provides, in substance, that 'A person commits forgery when, with intent to

defraud, he knowingly: [(1)] Makes or alters any document apparently capable of defrauding

another in such manner that it purports to have been made by another *** or with different

provisions, *** or (2) Issues or delivers such document knowing it to have been thus made

or altered.' " People ex rel. Miller v. Pate, 42 Ill. 2d 283, 286 (1969), quoting Ill. Rev. Stat.

1965, ch. 38, par. 17--3.

The State argues that, contrary to the language of the statute, it need not have proven that

the documents purported to have been made by someone else, at another time, with different

provisions, or by authority of someone who did not give such authority, because "Illinois case law

and [the] General Assembly in the forgery statute have included examples of the ways in which

documents can be false or capable of defrauding, but those examples are intended as illustrations and

not as exhaustive lists." The State cites People v. Kubanek, 370 Ill. 646, 649-50 (1939), in which the

court noted that the editors of "Ruling Case Law" stated that there was no generic definition of

forgery broad enough to include all forgery crimes, so legislatures had found it necessary to write

such statutes broadly. Kubanek provides little support for the State's argument, as the Kubanek court

-18- No. 2--07--0470

relied on the actual language of the relevant statute in arriving at its decision, and section 17--3 can

similarly be interpreted as containing broad provisions.

The State maintains that its argument is also supported by other Committee Comments to

section 17--3, which state: "For the same reason[,] it was deemed desirable to give an illustrative

definition of 'document apparently capable of defrauding,' but not to limit it to such illustrations since

the possible variations are innumerable." 720 ILCS Ann. 5/17--3, Committee Comments--1961, at

408 (Smith-Hurd 2003). According to the State, the language in section 17--3(a)(1) listing the

manners in which a document may be fraudulent provides such nonexhaustive illustrations.

We believe that the State is misinterpreting the Committee Comments, as the statement it

relies upon appears to refer to subsection (c). Subsection (c) states:

"A document apparently capable of defrauding another includes, but is not limited to,

one by which any right, obligation or power with reference to any person or property may be

created, transferred, altered or terminated." (Emphasis added.) 720 ILCS 5/17--3(c) (West

2002).

The Committee Comments cited by the State refer to an "illustrative definition of 'document

apparently capable of defrauding,' " and subsection (c) correspondingly gives nonexclusive examples

for the definition of "document apparently capable of defrauding." Therefore, the Committee

Comments do not indicate that subsection (a)(1)'s language--"in such a manner that it purports to

have been made by another or at another time, or with different provisions, or by authority of one

who did not give such authority"-- merely provides a few of an infinite number of examples.

The State also relies on People v. Young, 19 Ill. App. 3d 455 (1974). There, the defendant

argued that the forgery indictment against him was insufficient because it did not specify whether the

-19- No. 2--07--0470

allegedly forged stock certificate purported to have been made by someone else, at another time, with

different provisions, or by authority of a person who did not give such authority. Young, 19 Ill. App.

3d at 457. The appellate court disagreed, stating:

"We view the alternatives descriptive of forgery as nondefinitional insofar as the

definition of forgery is concerned. Such alternatives are by way of example--exemplative.

Forgery, as we know, is a false making or alteration of an instrument which is apparently

capable of defrauding another and made or altered with an intent to defraud, or, the issuance

or delivery of a forged document 'knowing it to have been thus made or altered'--being

subsection (2) of the forgery statute. The general rule is that an indictment which charges an

offense in the language of the statute is deemed sufficient if such language particularizes the

offense so that the accused is apprised of what the charge it [sic]. *** But the forgery

statute does define--particularize--the elements of forgery--thus a charge which uses the same

language is valid. Here, the charge was that defendant delivered a forged document with

intent to defraud--whether it was made by another or with different provisions, or by the one

who did not give such authority, are simply aspects of what might compromise a forged

document. These aspects need not be set out in the charge. This being so, the count for

forgery was sufficient." Young, 19 Ill. App. 3d at 457-58.

While the Young court held that the indictment did not have to specify in what manner the

document was alleged to be a forgery, it did not hold that the proof did not have to comply with the

statutory language. To the contrary, the Young court stated: "True, the subject matter of forgery

must be a document altered or made and capable apparently of defrauding another 'in such a manner

that it purports to have been made by another or at another time, or with different provisions, or by

-20- No. 2--07--0470

authority of one who did not give such authority.' " Young, 19 Ill. App. 3d at 457. The bill of

particulars stated that the stock certificate was a forgery in that it purported to have been made by

the authority of a corporation that did not give such authority (Young, 19 Ill. App. 3d at 457), and

the State presented evidence of this lack of authority at trial (Young, 19 Ill. App. 3d at 460).

In contrast to the State's arguments, we note that in Hockaday our supreme court stated:

"The appellate court in this case properly identified the five elements of the forgery-by-

delivery offense as follows:

'(1) a document apparently capable of defrauding another; (2) a making or

altering of such document by one person in such manner that it purports to have been

made by another; (3) knowledge by defendant that it has been thus made; (4) knowing

delivery of the document; and (5) intent to defraud.' " (Emphasis added.) Hockaday,

93 Ill. 2d at 282, quoting People v. Hockaday, 100 Ill. App. 3d 762, 765 (1981).

Thus, Hockaday recognized that the manner in which a document is a forgery is an element of the

crime. This court has since cited Hockaday in setting forth the elements of forgery. See People v.

Hunter, 331 Ill. App. 3d 1017, 1026 (2002) (listing same elements as "[t]he essential elements

necessary to prove forgery in this case," on a challenge to the sufficiency of the evidence); People v.

Bokuniewicz, 160 Ill. App. 3d 270, 273 (1987).

The State points out that the Hockaday court stated that, "[i]n charging that the check

'purported to have been made by another,' the information describes the type of fraudulent character

that the check possessed." (Emphasis added.) Hockaday, 93 Ill. 2d at 284. Therefore, argues the

State, the court acknowledged that other types of fraudulent character were possible. We agree, in

that, as the statute specifies, the document may also purport to have been made "at another time, or

-21- No. 2--07--0470

with different provisions, or by authority of one who did not give such authority." 720 ILCS 5/17--

3(a)(1) (West 2002).

In sum, we have determined that, in order to obtain a conviction of forgery, the State was

required to prove that, with the intent to defraud, defendant knowingly made or altered a document

that was capable of defrauding another in that it purported to have been made by another person, at

another time, with different provisions, or by authority of someone who did not give such authority.

720 ILCS 5/17--3 (West 2002). We now discuss whether the State met its burden. Defendant argues

that there was no evidence that his letter purported to have been made (1) by another person, (2) at

another time, (3) with different provisions, or (4) by authority of one who did not give such authority.

We begin our analysis with count IV, which involved writing the March 29, 1999, letter. The

letter clearly did not purport to have been made by a person other than defendant. It also did not

purport to have been made on another date or by someone else's authority. The State argues that the

letter qualifies as purporting to have been made with different provisions. The State cites People v.

East-West University, Inc., 163 Ill. App. 3d 44 (1987), as support. There, the defendants were

charged with forgery in that, with the intent to defraud, they made documents capable of defrauding

another in that the documents purported to have been made with different provisions. East-West

University, Inc., 163 Ill. App. 3d at 46. The indictments described the documents as " 'all

documentation required to receive Basic Educational Opportunity Grant funds,' 'Illinois State

Scholarship Certifications,' and 'documentation required to receive Illinois Board of Higher Education

Grant funds.' " East-West University, Inc., 163 Ill. App. 3d at 46. The documents allegedly

" ''contained the names and credit hours of students, enrolled at East-West University, who were

entitled' " to the grant funds even though the defendants " 'knew that the documentation contained

-22- No. 2--07--0470

the names of persons who were not entitled to said funds.' " East-West University, Inc., 163 Ill. App.

3d at 46. The defendants argued that the conduct alleged in the indictments did not constitute

forgery. The court disagreed, stating:

"Essentially, the indictments in the case at bar alleged that defendants falsified

enrollment and registration data at East-West University in order to obtain educational grant

funds for persons who were not entitled to them. We experience no difficulty in concluding

that this conduct, if proved, constitutes forgery, which has been succinctly defined as 'a false

making or alteration of an instrument which is apparently capable of defrauding another and

made or altered with an intent to defraud.' " (Emphasis in original.) East West University,

Inc., 163 Ill. App. 3d at 48, quoting Young, 19 Ill. App. 3d at 457.

East-West University is distinguishable from the instant case because the documents at issue

in East-West University included "Illinois State Scholarship Certifications" and "falsified enrollment

and registration data" that were used to try to obtain education grants for people who were not

entitled to them. In this sense, the documents could have been capable of defrauding another in that

they purported to have been made with different provisions, i.e., listing people on the certifications

and registration data who did not qualify for grants, in that way changing the certifications and data

from the originals. Count IV, in contrast, involves a self-authored letter in which defendant allegedly

made a false statement or false statements of fact, but the letter itself did not purport to have been

made with different provisions; unlike in East-West University, defendant was not alleged to have

changed any original document.

To the extent that East-West University may have involved merely false statements, we

disagree with the court's rationale. The East-West University court relied on the "succinct" definition

-23- No. 2--07--0470

of forgery from Young, which did not specify that the document had to purport to have been made

by someone else, at another time, with different provisions, or by authority of someone who did not

give such authority. East West University, Inc., 163 Ill. App. 3d at 48, quoting Young, 19 Ill. App.

3d at 457. However, Young involved the sufficiency of just an indictment for forgery, and, as

discussed, even if the State is not required to specify in an indictment how a document was capable

of defrauding another, the proof at trial must show that the document has a type of fraudulent

character specified in the statute. As mentioned, this is a concept that the Young court itself

recognized. See Young, 19 Ill. App. 3d at 457 ("True, the subject matter of forgery must be a

document altered or made and capable apparently of defrauding another 'in such a manner that it

purports to have been made by another or at another time, or with different provisions, or by

authority of one who did not give such authority' "). Thus, the State's reliance on East-West

University is not persuasive.

The other cases relied on by the State are easily distinguishable in that they involve documents

that purported to have been made by authority of someone who did not give such authority, which

falls under section 17--3. See People v. Mau, 377 Ill. 199, 207 (1941) (the defendant was alleged

to have exceeded his authority by making a false special assessment disbursement sheet); Kubanek,

370 Ill. at 648 (the defendant made a check payable to himself, without the authority of the check

owner); People v. Murrah, 255 Ill. App. 3d 742, 746-47 (1993) (the defendant added his name to a

corporate credit card application form without his boss's permission); People v. Moyer, 1 Ill. App.

3d 245, 249 (1971) (the defendant signed a fictitious name to a sales receipt and falsely asserted the

authority to use his stepfather's credit).

-24- No. 2--07--0470

We have concluded that defendant's March 29, 1999, letter does not purport to have been

made by another person, at another time, or by authority of someone who did not give such authority.

The State's argument that it purported to have been made with different provisions is also

unpersuasive. As there was insufficient evidence that the March 29, 1999, letter had a type of

fraudulent character specified in section 17--3, it follows that defendant was not proven guilty of

forgery in count IV beyond a reasonable doubt. We therefore reverse his conviction on count IV.

We now turn to count V. Count V alleged that defendant was guilty of forgery for, with the

intent to defraud, knowingly making a document apparently capable of defrauding another, in that

he submitted a copy of the March 29, 1999, letter to Del Re on August 12, 2003. As with count IV,

count V alleged that the letter falsely stated that he was deputized on November 16, 1981; that Lesza

requested his deputy badge in 1982, explaining that his status had been reclassified as a correctional

officer; and that he worked for the warrants division, correctional division, and special details for the

department between November 16, 1981, and May 1982.

Defendant's conviction on count V suffers from the same infirmity as his conviction on count

IV, in that there was insufficient evidence that the faxed letter purported to have been made by

someone else, at another time, or by authority of someone who did not provide authority. Further,

although the faxed letter literally had different provisions from the original letter in that it was missing

two sentences contained in the original letter, the difference was insufficient to sustain a conviction.

Specifically, the faxed letter eliminated the following sentences:

"During the onset of this concern I decided not to breach the subject in writing based on

Sheriff Grinnell's lack of interest, and was coordinating with I.M.R.F. in an effort to determine

the proper retirement date based on the September 14, 1984 date. However, after further

-25- No. 2--07--0470

research it became appearent [sic] the serious impact this date has on my retirement ability

Under section 17--3, as applicable here, the document must be "apparently capable of defrauding

another in such a manner that it purports to have been made *** with different provisions." 720

ILCS 5/17--3(a)(1) (West 2002). In other words, the different provisions have to be material to the

fraud. A contrary interpretation could lead to absurd results, in that an otherwise insignificant

difference in grammar could be labeled as a different provision. See People v. McCarty, 223 Ill. 2d

109, 126 (2006) (in construing a statute, the court presumes that the legislature did not intend absurd

results). The jury instructions for count VI, which explicitly alleged the different provisions,

recognized this principle, as the first proposition was that defendant "knowingly made or altered a

document so that it appeared to have been [made] with different provisions" and the second

proposition was that defendant "did so with an intent to defraud." (Emphasis added.)

Here, even viewed in the light most favorable to the State, the omission was not apparently

capable of defrauding another. It is undisputed that Del Re had a copy of the original March 29,

1999, letter in his file. In the version faxed in 2003, the first omitted sentence acknowledged that

IMRF identified defendant's start date as September 14, 1984, but that fact was also brought out

earlier in the same letter, when defendant stated, "In my case, they identified the S.L.E.P. start date

as September 14, 1984." The first omitted sentence also conveyed that defendant did not initially

challenge his start date in writing and was working with IMRF based on the 1984 start date, but those

facts are undisputed and are not the basis of the fraud alleged against defendant. The second omitted

sentence discussed the impact the different date would have on defendant's ability to retire and his

pension security, but defendant repeated this sentiment later in the letter when he stated, "Though I

-26- No. 2--07--0470

do not plan to retire from the department [in 2001], the additional months of service will have a

serious impact on the financial aspect of my retirement. Lastly, to lock in my retirement on the

correct date will ease the apprehension that most feel in a politically appointed position." The omitted

information was largely repetitive of other portions of the letter, and it did not affect the parts of the

letter that were allegedly false, i.e., the statements that defendant was deputized in 1981; had his

deputy status revoked in 1982; had worked for the warrants division, correctional division, and

special details for the sheriff's department between November 1981 and May 1982; and was

temporarily assigned to the warrants division and to civil process during the early months of his

employment. Del Re, to whom the letter was directed, even testified that he was "not sure that

[defendant's omission of the sentences] meant a great deal" and that it did not cause him to feel that

"anything was being put over on" him.

We further note that defendant had communicated the information from the omitted sentences

directly to IMRF through his February 2000 letter to Nordstrom. In that letter, defendant stated:

"Secondly, between 1991 and the time that Sheriff Grinnell left office, on at least three

occasions I spoke with him about the error and asked if he had a chance to investigate it. As

I explained to Sheriff Del Re, there came a point whereas I felt that my concerns were getting

ignored. Initially I was not extremely concerned with the 1984 date because I had no

intentions of retiring until the age of 50. However, I have since researched and determined

the impact that the 32 months would have on my overall retirement and my ability to secure

my required vestage [sic] on November 16, 1981. This is the reason that I am now

aggressively seeking the I.M.R.F. credits to be rightfully converted to S.L.E.P. credits."

-27- No. 2--07--0470

To summarize, although the 2003 faxed version of the March 29, 1999, letter contained

different provisions in that it omitted two sentences, the omission was not "apparently capable of

defrauding another," because the missing sentences were not material to the fraud defendant allegedly

sought to perpetrate. Moreover, in addition to being cumulative of information provided in other

letters, the missing sentences were also cumulative of other, unaltered parts of the very letter at issue.

Thus, there was insufficient evidence that the omission was apparently capable of defrauding another,

meaning that defendant was not proven guilty beyond a reasonable doubt of forgery as charged in

count V.

Based on our conclusion that defendant was not proven guilty beyond a reasonable doubt of

forgery because the evidence did meet the statutory requirements, we need not address defendant's

alternative arguments that the documents were not capable of defrauding another because they did

not have legal efficacy and because he was truly entitled to the SLEP credit. We also do not reach

his arguments that the trial court should have declared a mistrial instead of instructing the deadlocked

jury to deliberate and that one of his two convictions must be vacated because they both arise out of

the same act.

III. CONCLUSION

For the foregoing reasons, we reverse the judgment of the Lake County circuit court.

Reversed.

O'MALLEY and GROMETER, JJ., concur.

-28-