People v. Bensen
2017 IL App (2d) 150085
| Ill. App. Ct. | 2017Background
- Beverly Bensen was hired as an elderly (≈80) victim John Cuneo’s personal secretary and later office manager; she had authority to pay his corporate and personal bills.
- Cuneo provided an American Express card for corporate use; the account listed both Bensen and Cuneo’s corporation, and the physical card used bore Bensen’s name/number.
- Investigation showed thousands of dollars of personal purchases charged to the card (iPads, clothing, groceries, etc.); some checks and utility payments were also prepared or paid from Cuneo’s accounts.
- Bensen admitted making many charges but claimed Cuneo authorized them or forgave rent; she also admitted concealing monthly totals by presenting weekly balances.
- She was convicted by a jury of aggravated identity theft (720 ILCS 5/16‑30(b)(1)), theft, and financial exploitation of an elderly person; theft and exploitation were merged into the aggravated‑identity‑theft conviction.
- On appeal the court reversed the aggravated identity theft conviction, instructing the trial court to reinstate the theft and exploitation convictions (Class 3 felonies) and to resentence on those counts.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether using a credit card bearing defendant’s name/number can constitute identity theft of "another person" | The State argued Bensen used Cuneo’s account to fraudulently obtain goods, supporting identity‑theft charge | Bensen argued the card number and name on the card identified her (not another), so she did not use another person’s personal identifying information | Reversed identity‑theft conviction: card identified Bensen, so she did not use the personal identifying information of "another person" |
| Whether other account-related acts (checks/payments) could sustain identity‑theft conviction given trial theory | State, on appeal, suggested use of Cuneo’s checking account numbers could constitute identity theft | Bensen did not argue this theory at trial; she proceeded on credit‑card theory | Court declined to consider alternate theory because State did not rely on it at trial (due process); the appellate reversal rests on trial theory only |
| Jury instruction error re: mental state (knowledge) omitted from pattern instruction | State relied on the instruction given at trial | Bensen argued omission of mental-state element required new trial | Court did not reach this claim due to reversal on sufficiency grounds |
| Remedy following reversal of aggravated‑identity‑theft conviction | State wanted conviction to stand or alternative theories considered | Bensen sought reversal of identity‑theft count and affirmation of other convictions reduced/merged appropriately | Court reversed aggravated identity theft, ordered reinstatement and sentencing on theft and financial‑exploitation convictions |
Key Cases Cited
- People v. Collins, 214 Ill. 2d 206 (statutory sufficiency and appellate standard of review)
- People v. Montoya, 373 Ill. App. 3d 78 (identity theft requires misrepresenting oneself as another)
- State v. Zibulsky, 338 P.3d 750 (use of one’s own joint account information does not constitute identity theft)
- State v. Ritter, 380 P.3d 1160 (identity theft requires possession or exercise of control over another’s identifying information)
- State v. Cotton, 194 So. 3d 69 (company card bearing defendant’s identifying number did not constitute use of another’s personal identifying information)