NO. 4-95-0557
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) McLean County
PHYLLIS HOUSTON, ) No. 94CM73
Defendant-Appellant. )
) Honorable
) Joseph H. Kelly,
) Judge Presiding.
_________________________________________________________________
JUSTICE COOK delivered the opinion of the court:
Following a jury trial, defendant Phyllis Houston, née
Phyllis Hoback, was found guilty of eight counts of telephone
fraud (720 ILCS 365/1(g) (West 1992)) and sentenced to 18 months
of conditional discharge. She was ordered to pay restitution of
$5,035.06 "to be determined." Defendant appeals, contending that
(1) the trial court erred in admitting evidence that defendant
applied for phone service in 1989 under the name of "John Hous-
ton," where this prior "bad act" was not probative regarding her
present offenses; (2) the trial court erred in admitting as
business records GTE reports that were generated in preparation
for trial; (3) she was not proved guilty beyond a reasonable
doubt; and (4) the restitution order must be vacated, because it
failed to specify the time and method of repayment. We affirm in
part, reverse in part, vacate in part, and remand.
In counts I through IV, defendant was charged with
obtaining telephone service from GTE "by using the name of
Phyllis Hoback as the party to be billed, knowing that service
under the name of Phyllis Houston would be refused." Each of the
four months that defendant allegedly received telephone service
as Phyllis Hoback (December 1992 through March 1993) was charged
as a separate count. In counts V through VIII, defendant was
charged with obtaining telephone service "by using the name of
Troy Huston [sic], a minor under the age of 17, as the party to
be billed, knowing that service under the name of Phyllis Houston
would be refused." Troy Houston, whose last name is spelled with
two o's, is one of defendant's sons. Each month of service
received in Troy's name, from May 1993 to August 1993, was
charged as a separate count.
Prior to trial, defendant filed a motion in limine to
preclude evidence that she applied in 1989 for phone service
under the name of John Houston. Defendant's motion was denied.
At trial, Robert Hanner, an investigator employed in
GTE's security department, was the State's sole witness. Hanner
began investigating defendant in August 1993 after GTE's billing
center sent him records of three unpaid accounts in the names of
John Houston, Phyllis Hoback, and Troy Huston. In October 1993,
Hanner and another GTE investigator interviewed defendant at her
residence. They obtained a written statement from defendant,
which was entered into evidence.
In the statement, defendant related that in 1978, she
and her family had resided on Center Street in Bloomington,
Illinois. Their telephone service at this address was under her
husband's name, Roy Houston, Sr. (Roy Sr.). The service was
disconnected for nonpayment of bills. In 1989, the family moved
to Anchor, Illinois. Defendant's husband instructed defendant to
apply for telephone service using the name "John Houston."
Defendant and Roy Sr. have a son named John (or Jonathan) Hous-
ton, who was 16 years old at the time. Roy Sr. told defendant
that he was unable to obtain telephone service in his own name
because of his bad debt with GTE. He threatened defendant and
her children with bodily harm unless she applied to GTE. She
complied. The John Houston account was disconnected in fall 1992
with an unpaid balance of $6,712.73.
In November 1992, shortly after her divorce from Roy
Sr., defendant and her children moved to 202 South Prospect,
Apartment 105K, Bloomington, Illinois. Defendant applied for
telephone service at this address using her maiden name, Phyllis
Hoback. She wrote, "[w]hen I applied for the telephone in my
maiden name, I showed the GTE representative my divorce decree,
where I took my maiden name back." The Phyllis Hoback account
was disconnected for nonpayment of $2,310.83. Telephone service
was reinstated at defendant's address under the name of Troy
Houston. Defendant wrote, "I would state that my son Troy
applied for the telephone service in his name without my know-
ledge." The Troy Houston (or "Huston") account was disconnected
in August 1993 with an unpaid balance of $2,724.20.
Defendant signed her statement "Phyllis S. Hoback
Houston." After signing, defendant offered to pay Hanner $3,000
to settle the accounts. Hanner refused.
Hanner testified that when a potential customer applies
for telephone service, GTE runs the customer's name, social
security number and prior address through a computer system
called the "Recoup." If the Recoup does not reveal a bad debt,
GTE will go ahead and establish service. GTE does not ask
applicants their age. Hanner assumed that defendant applied for
service over the telephone. However, on cross-examination he
admitted that he was not present when the applications were made,
and he did not know whether the applications were made in person
or over the telephone.
Over defendant's objection, the State introduced
computer records of the John Houston, Phyllis Hoback, and Troy
Huston accounts. These records were generated between August
1993 and October 1993 by Hanner during the course of his investi-
gation. The records indicated that a large number of phone calls
were made on the Phyllis Hoback and Troy Huston accounts. One
printout showed that the John Houston account was delinquent
$6,712.73. According to another printout dated September 17,
1993, the Phyllis Hoback account was delinquent $2,250.83, but
someone had handwritten $2,310.83 beneath the first figure. The
Troy Huston account was delinquent $2,724.20 as of September 9,
1993, and $2,922.98 as of September 19, 1993. One-time payments
of $600 and $200 were credited to the Phyllis Hoback and the Troy
Huston accounts, respectively. No other payments were listed.
Defendant testified that her name was Phyllis Suzanne
Houston Hoback. She was married to Roy Sr. from 1970 to 1992.
She stated that her former husband had constantly threatened and
abused her and the children. In 1989, he threatened to kill her
if she did not apply for telephone service in the name of John
Houston, their son. He was arrested for molesting the children
in July 1991 or 1992, and he was currently serving a 48-year
prison sentence. Following her divorce, defendant moved to the
Prospect Road address in Bloomington, but her former husband
continued to terrorize her. She lived with her children, Roy
Jr., Troy, Channelle, and Jeremiah, plus "three or four other
kids that the kids had brought in."
In November 1992, defendant applied for telephone
service in her maiden name for her Bloomington residence. She
explained, "I went down to the telephone company with my divorce
papers and said this is my name. I have just moved from Route 1,
Anchor. And I am afraid because [my ex-husband] is still trying
to kill me and the kids, and I want the phone service in my
maiden name so he can't find us[.]" In addition to the divorce
papers, defendant showed the GTE representative her birth certif-
icate, which confirmed that her maiden name was Phyllis Suzanne
Hoback. Defendant explained that she did not believe her ex-
husband was smart enough to look for her under her maiden name.
GTE records reveal that the Phyllis Hoback account was for an
unlisted telephone number.
Defendant stated she had financial problems following
her divorce. She had sold her farm, but the proceeds were placed
in trust and unavailable to her. She was living on $400 a a month,
and she was unable to pay her bills. She did not know when the
Phyllis Hoback account was disconnected. Nor did she know who
reconnected telephone service in Troy Huston's name, at least not
until after she spoke with Hanner. She explained, "I think I was
having a nervous breakdown at the time. I would get the mail out
of the mailbox and throw it in the dish. I wouldn't look at it."
Jonathan Houston and Troy Houston confirmed that their
father was physically and verbally abusive. Neither Jonathan nor
Troy applied for telephone service in their own name.
Roy Jr., defendant's 20-year-old son, testified that he
moved in with his girlfriend after his parents' divorce, but he
stayed at defendant's Prospect Street address four or five times
a week. At the time of trial, Roy Jr. was serving prison sen-
tences for burglary, forgery, and aggravated criminal sexual
abuse. Roy Jr. stated that he was the one who applied for the
Troy Houston account. "I walked into GTE Phone Mart and told
them I wanted a telephone, and they said okay." He applied under
his brother's name "[b]ecause I had let my girlfriend put a phone
in my name and she ran the bill up outrageously and I never paid
it." Roy Jr. did not tell his mother what he had done.
In rebuttal, Hanner claimed that the GTE Phone Mart
would have required identification, such as a driver's license or
State identification card, before accepting an application. Roy
Jr. did not resemble Troy. Hanner admitted, however, that he did
not know whether the GTE representative followed the proper
application procedure.
Defendant first contends that the trial court erred in
admitting evidence that she applied for phone service in 1989
under John Houston's name. She argues that this evidence was not
probative of the charged offense, which involved telephone
service in 1992 to 1993, and it served only to portray her as an
inveterate abuser of telephone service. We disagree.
Evidence of uncharged offenses or bad acts is not
admissible to show a defendant's propensity to commit crime.
People v. Illgen, 145 Ill. 2d 353, 364, 583 N.E.2d 515, 519
(1991). Such evidence is admissible, however, if it is relevant
for any other purpose other than to show the propensity to commit
crime. Illgen, 145 Ill. 2d at 365, 583 N.E.2d at 519. When
evidence of other crimes is offered, the trial court must weigh
its probative value against its prejudicial effect, and may
exclude the evidence if its prejudicial effect substantially
outweighs its probative value. People v. Stewart, 105 Ill. 2d
22, 62, 473 N.E.2d 840, 860 (1984). The trial court's ruling as
to the admissibility of such evidence will not be reversed absent
an abuse of discretion. People v. Oaks, 169 Ill. 2d 409, 454,
662 N.E.2d 1328, 1348 (1996).
Here, evidence that defendant applied for telephone
service under the name John Houston was admissible to show her
intent. Where evidence of a defendant's involvement in another
offense is offered to prove the absence of an innocent frame of
mind or the presence of criminal intent, mere general areas of
similarity between the two offenses will suffice for the
evidence's admission. Oaks, 169 Ill. 2d at 454, 662 N.E.2d at
1348. The evidence revealed defendant knew that GTE kept a bad
debt file, those named in the file would be refused service, and
it was possible for a debtor to obtain telephone service by
applying under the name of a child. Intent is notoriously
difficult to establish through direct evidence. Defendant's past
dealings with GTE provided the best circumstantial evidence of
her intent to defraud and, thus, the evidence was highly proba-
tive. We note that defendant made no attempt to limit the
prejudicial effect of the evidence by requesting that the jury be
instructed that the evidence was being received for a limited
purpose. The trial court did not abuse its discretion in admit-
ting the evidence.
Defendant next contends that GTE's computer records
were generated in anticipation of litigation, and thus the trial
court erred in admitting the records under the business records
exception to the hearsay rule. Section 115-5(a) of the Code of
Criminal Procedure of 1963 (Code) provides for the introduction
into evidence of records "made in regular course of any business
*** if it was the regular course of such business to make such
memorandum or record at the time of such act, transaction, occur-
rence, or event or within a reasonable time thereafter." 725
ILCS 5/115-5(a) (West 1992). In contrast, records are inadmissi-
ble if they were "made by anyone during an investigation of an
alleged offense or during any investigation relating to pending
or anticipated litigation of any kind." 725 ILCS 5/115-5(c)(2)
(West 1992).
At trial, defendant did not object to GTE's computer
records on the grounds that they were generated during an inves-
tigation in anticipation of litigation. Instead, defendant
objected that the State failed to establish an adequate founda-
tion supporting the reliability of the records, an argument
defendant has abandoned on appeal. Moreover, defendant did not
object to the computer records in her post-trial motion. "Both
a trial objection and a written post-trial motion raising the
issue are required for alleged errors that could have been raised
during trial." (Emphasis in original.) People v. Enoch, 122
Ill. 2d 176, 186, 522 N.E.2d 1124, 1130 (1988). The issue is
therefore waived on appeal.
Regardless, we find that the records were properly
admitted, even though they were retrieved during a criminal
investigation. Tangible printouts of "computer-stored" data are
admissible under the business records exception to the hearsay
rule if (1) the electronic computing equipment is recognized as
standard, (2) the input is entered in the regular course of
business reasonably close in time to the happening of the event
recorded, and (3) the foundation testimony establishes that the
sources of information, method and time of preparation indicate
its trustworthiness and justify its admission. People v. Bynum,
257 Ill. App. 3d 502, 512, 629 N.E.2d 724, 731 (1994). Here,
however, the bulk of the billing data was generated instanta-
neously by the computer when telephone calls were placed from
defendant's accounts. It was not entered by a human declarant.
"Computer-generated" records are admissible under a lesser
standard. All that must be shown is that the recording device
was accurate and operating properly when the evidence was gener-
ated. Bynum, 257 Ill. App. 3d at 513, 629 N.E.2d at 731; People
v. Holowko, 109 Ill. 2d 187, 192, 486 N.E.2d 877, 879 (1985); see
also People v. Casey, 225 Ill. App. 3d 82, 88-89, 587 N.E.2d 511,
514-15 (1992) (contrasting "computer-stored" data with "computer-
generated" data). Defendant does not contest the accuracy of
GTE's billing computer.
Accurate computer data does not become inadmissible
simply because it was retrieved in anticipation of litigation,
any more than a ledger ceases to be a business record when it is
brought into the courtroom. "But if the retrieval process is
designed from a litigant's various sources of information and
purposeful selection that cannot be independently reviewed by the
defense," then the retrieved material may be challenged as being
prepared in anticipation of litigation. Casey, 225 Ill. App. 3d
at 90, 587 N.E.2d at 515. Here, there was no "purposeful selec-
tion." The computer's billing records were simply downloaded in
an unaltered form.
As noted above, the bulk of the billing records were
generated contemporaneously when the telephone calls were placed,
prior to the commencement of any criminal investigation. On one
printout, the phrases "SS # NOT FOR PHYLLIS-REAL NAME PHYLLIS
HOUSTON" and "SS # NOT FOR PHYLLIS-REAL NAME PHYLLIS HOUSTON-
SUSAN HOUSTON" and "PLS VERIFY LAST NM ON DL#-NOT FOR A HOBACK"
each appeared twice. It is unclear when or by whom these com-
ments were entered into GTE's computer. Had defendant specifi-
cally objected to these comments, it might have been proper to
excise them from the other, properly admissible, records.
Defendant did not do so, and we decline to find error.
Defendant also contends the reports were irrelevant. We dis-
agree. The billing reports established that defendant obtained
telephone service, a necessary element of the offense. The
reports also revealed that an excessive number of telephone calls
were placed from defendant's address, a fact defendant would
likely have been aware of. This provided some evidence of
defendant's intent to defraud.
Defendant argues the State failed to prove beyond a
reasonable doubt that she fraudulently obtained telephone ser-
vice. We agree that the State failed to prove counts I through
IV, but we affirm defendant's conviction for count V. Defendant
was convicted of violating section 1(g) of the Telephone Charge
Fraud Act (Act), which provides as follows:
"Any individual, corporation, or
other person, who, with intent to defraud or
to aid and abet another to defraud any in-
dividual, corporation, or other person, of
the lawful charge, in whole or in part, for
any telecommunications service, shall obtain,
or attempt to obtain, or aid and abet another
to obtain or to attempt to obtain, any tele-
communications service:
* * *
(g) by any other trick, stratagem, im-
personation, false pretense, false represen-
tation, false statement, contrivance, device,
or means, shall be deemed guilty of a Class
A Misdemeanor." 720 ILCS 365/1(g) (West 1992).
When a challenge to the sufficiency of the evidence is
raised on appeal, the relevant inquiry is whether, after viewing
the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the necessary elements of
the crime beyond a reasonable doubt. People v. Burrows, 148 Ill.
2d 196, 225, 592 N.E.2d 997, 1009 (1992), citing Jackson v.
Virginia, 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct.
2781, 2789 (1979). Neither case law nor the parties discuss what
elements are necessary to establish a violation of section 1(g)
of the Act. Our research reveals but a single case involving the
Act, People v. Smith, 72 Ill. App. 3d 956, 390 N.E.2d 1356
(1979), and the facts of Smith are inapposite to the present
case. In Smith, the defendant violated section 15c(c) of an
earlier version of the Act by using a "blue box" electronic
device to avoid long-distance tolls. Smith, 72 Ill. App. 3d at
965, 390 N.E.2d at 1363; Ill. Rev. Stat. 1973, ch. 134, par.
15c(c).
To establish a violation of section 1(g) of the Act,
the State must prove that a defendant (1) obtained or attempted
to obtain telecommunications service, (2) with intent to defraud
the telecommunications service provider of its full lawful
charge, and (3) by any "trick, stratagem, false pretense, false
representation, false statement, contrivance, device, or means."
720 ILCS 365/1(g) (West 1992). The third element requires some
interpretation. Several terms, all connoting deception, are
listed in the disjunctive. After listing synonyms for decep-
tion, section 1(g) forbids telephone fraud by any other "means."
720 ILCS 365/1(g) (West 1992). Under the rule of ejusdem gene-
ris, when general words follow specific words in a statute, the
general words must be construed to include only things of the
same kind as those indicated by the specific words. Bonfield v.
Jordan, 202 Ill. App. 3d 638, 645, 560 N.E.2d 412, 416-17 (1990).
"[A]ny other *** means" (720 ILCS 365/1(g) (West 1992)) must
therefore refer to any deceptive means. Like more traditional
forms of fraud, violations of section 1(g) of the Act require a
false representation of material fact. See, e.g., People v.
Yarbrough, 128 Ill. 2d 460, 473, 539 N.E.2d 1228, 1234 (1989).
Here, the State alleged that defendant twice misrepre-
sented her name to GTE, knowing that GTE would refuse her tele-
phone service if it was aware of her true identity. If proved,
these two material misrepresentations would support convictions
for two counts of telephone fraud. However, the State charged
defendant with a separate count for each month she received
telephone service, and defendant was convicted of eight counts of
telephone fraud. The State apparently charged each month of
service as a separate count because GTE chooses to bill its
customers on a month-to-month basis. Neither defendant nor the
State addresses whether eight convictions for telephone fraud can
be premised on only two fraudulent misrepresentations. We hold
that they cannot. The statute's use of the word "obtain" implies
that the crime is completed when a defendant establishes or
attempts to establish access to telecommunications service. The
making of each call once telephone service has been fraudulently
obtained does not constitute a new offense, unless the defendant
commits some fresh fraud. We note that the legislature has
amended the Act, effective January 1, 1994, to provide that the
defrauding of services in excess of $300 is a Class 4 felony.
720 ILCS 365/1(g) (West 1994); Pub. Act 88-75, §15 (eff. January
1, 1994) (1993 Ill. Laws 1066, 1069). This further suggests that
multiple uses of fraudulently obtained telephone service should
be counted as a single crime, since rarely will a single tele-
phone call result in charges in excess of $300.
fraudulently obtaining telephone service under her maiden name.
Defendant consistently maintained she applied for phone service
in her maiden name, Phyllis Suzanne Hoback, after showing GTE her
birth certificate and divorce decree. Defendant further stated
that her maiden name was restored after her divorce. It appears
defendant is inconsistent in the use of her maiden name. She
signed her statement "Phyllis S. Hoback Houston," but she testi-
fied that her name was "Phyllis Suzanne Houston Hoback."
Defendant's use of her maiden name, even if that name is now her
legal name, could support a conviction for telephone fraud, if
defendant was concealing her "true" identity. However, there is
no evidence any deception occurred, because defendant supplied
GTE with enough information that it was or should have been aware
of her identity. Hanner testified GTE would have obtained
defendant's social security number at the time she applied for
service. GTE's billing records confirm that GTE knew both
defendant's social security number and driver's license number.
We therefore reverse defendant's convictions for counts I through
IV.
In counts V through VIII, defendant was charged with
fraudulently obtaining telephone service in May 1993 under the
name of Troy Huston. Defendant contends there is no evidence
that she was the person who applied in Troy's name. Roy Jr.
testified that he was responsible for that act. Nevertheless, we
find that a rational jury could infer that defendant made the
application. Defendant was the sole adult residing full-time at
the address. She admitted she used the telephone regularly, but
she claimed not to know her telephone was disconnected on May 5,
1993, and remained disconnected until May 18, 1993, despite the
enormous number of telephone calls placed from her residence.
She received telephone bills in Troy's name, but never questioned
those bills. She had applied for telephone service under a
different son's name once before. The jury was not required to
believe Roy Jr., a convicted felon serving time in prison, when
he claimed to be the person who applied for telephone service.
We therefore affirm defendant's conviction for count V. However,
as discussed above, we hold that defendant's single fraudulent
application cannot support convictions for four counts of tele-
phone fraud. We vacate defendant's convictions for counts VI
through VIII.
Because we are reversing (counts I through IV) or
vacating (counts VI through VIII) all but one (count V) of
defendant's convictions, and because she received a single
sentence on all eight counts, we remand for resentencing. On
remand, the circuit court should determine a payment schedule as
part of its order of restitution. See 730 ILCS 5/5-5-6(f)
Affirmed in part, reversed in part, and vacated in
part; cause remanded.
STEIGMANN, P.J., and McCULLOUGH, J., concur.