June 14, 2001

JUSTICE COOK delivered the opinion of the court:

A jury found defendant Daniel Rohlfs guilty of onecount of theft by deception (over $300) (720 ILCS 5/16-1(a)(2),(b)(4) (West 1998)) and three counts of attempt (theft by deception) (720 ILCS 5/8-4(a), 16-1(a)(2) (West 1998)). Each countinvolved a different victim. The trial court sentenced Rohlfs toan extended term of 10 years' imprisonment on the theft count andconcurrent terms of 364 days' imprisonment on the three attemptcounts. On appeal, Rohlfs challenges the admissibility ofcertain evidence at trial, the sufficiency of evidence to supportthe conviction, and the fees and costs imposed at sentencing. After the initial briefs were submitted, Rohlfs filed a supplemental brief challenging his extended-term sentence based uponthe United States Supreme Court's recent decision in Apprendi v.New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348(2000). We affirm in part, vacate in part, and remand.

Rohlfs was incarcerated in the McLean County jailbeginning on May 22, 1998, for charges unrelated to those atissue here. Shortly thereafter, jail officials began receivingcomplaints from the public that an inmate was making collectphone calls to elderly women, pretending to be a relative andthen asking the women to wire money to him via Western Union. One of the victims, Edra Thames, fell prey to the scam and wired$1,500 to Rohlfs. The money order was delivered to Rohlfs injail, and he endorsed it. The money order was then confiscatedand never deposited into Rohlfs' account. After this incident,Rohlfs was placed into isolation without access to a phone. Thecomplaints regarding the phone scam ceased.

II. MOTION IN LIMINE AND MODUS OPERANDI

Prior to trial, Rohlfs filed a motion in limine askingthe court to prohibit the introduction of evidence linking him tothree telephone scams that were not charged in the indictment atissue here. He argued that he would be prejudiced by the introduction of the other-crimes evidence because it was merely usedto show a propensity to commit crime. The State argued that theevidence was properly admitted under the modus operandi exceptionto establish identity due to the similarities between the chargedand uncharged offenses.

Rohlfs objects to the admissibility of testimony fromtwo women that disclosed details about his phone scams. Rohlfsinformed Sandra Magee that he would pick a name of someone whosounded old from a directory, call her, pretend to be a relative,and ask her for money. Magee also identified Rohlfs' records ofthe scams, including the individuals he contacted, relatives'names, and money requested. Rohlfs had boasted to Magee that hehad used the scam to bond out of jail on a previous occasion. Karen Reynolds also testified, indicating that Rohlfs had askedher to retrieve Western Union wire transfers for him in the past. One of the wire transfers was sent to Rohlfs from VirginiaHorton, the victim of a phone scam in Springfield, Illinois.

Rohlfs also claims the circuit court improperly admitted evidence relating to Eva Thacker and Betty Vance. Thesewomen received phone calls from an inmate at the jail requestingmoney. Testimony from jail officers established that, althoughseveral inmates had access to the phone in each cell block,Rohlfs was the only inmate who was in every cell block at thetimes the complained-of calls were made. For example, Vance wascalled from cell block H while Rohlfs was housed in that cellblock. Similarly, Thacker was called from cell block E whileRohlfs was in that cell block.

Generally, evidence of other crimes is inadmissiblewhere that evidence is relevant solely to establish a defendant'spropensity to commit crime. People v. Robinson, 167 Ill. 2d 53,62, 656 N.E.2d 1090, 1094 (1995). However, evidence of othercrimes is admissible where relevant for a purpose other than toshow the propensity to commit crime. Robinson, 167 Ill. 2d at62, 656 N.E.2d at 1094. For example, evidence of other crimesmay be relevant to prove intent, identity, motive, absence ofmistake, modus operandi (Robinson, 167 Ill. 2d at 62-63, 656N.E.2d at 1094), or the existence of a common scheme or plan. People v. Crayton, 175 Ill. App. 3d 932, 946, 530 N.E.2d 651, 660(1988).

Here, the State argues that the similarities betweenthe charged and uncharged offenses justify admission of theother-crimes evidence to further establish Rohlfs' identity inthe charged offenses. Such a showing must create a logicalinference that, if Rohlfs committed a former offense, he alsocommitted the latter. See People v. Willer, 281 Ill. App. 3d939, 954, 667 N.E.2d 708, 719 (1996). The offenses need not beidentical but must share features that, although common tosimilar crimes in general, are distinctive when consideredtogether. Willer, 281 Ill. App. 3d at 954, 667 N.E.2d at 719. Although there must be a persuasive showing of similarity, thetest is not one of exact, rigorous identity, and some dissimilarity will always exist between independent crimes. Robinson, 167Ill. 2d at 65, 656 N.E.2d at 1095.

In this case, the similarities between the charged anduncharged offenses far outweigh the differences and admission ofthe evidence was appropriate. All the victims were elderly womenand, in each instance, the caller was a man. In every call, thecaller claimed to be a relative. The caller always asked formoney for his car. In four of the seven calls, the money was tobe used for past-due car payments, supposedly to avoid repossession. In the other three calls, the money was to be used for carrepairs because the caller had allegedly been in an accident. Infive of these calls, the victims were asked to send the money viaWestern Union. The other two victims indicated that their callsnever reached the point of discussion on how to send the money. In every call where the caller claimed to have been in an accident and the victim questioned whether he was in fact her relative, he said his voice sounded different because he had hit histhroat on the steering wheel. In five of the calls, the callerasked for $1,500. All of the victims were called within a two-week time span from May 17, 1998, to June 1, 1998. Moreover,with respect to the calls made from the jail, Rohlfs was the onlyinmate to be in each jail cell block at the time the variouscalls were made.

In some cases, no particular factor is unique, but itis the totality of the factors that is probative. People v.Biggers, 273 Ill. App. 3d 116, 123, 652 N.E.2d 474, 479 (1995). When viewing the totality of factors in this case, the similaritybetween the charged and uncharged offenses is overwhelming. Thecircuit court here carefully reviewed the evidence relating tothe admissibility of the other-crimes evidence. We conclude thatthe similarities created a logical inference that the same personcommitted both the charged and uncharged offenses. Thus, thecircuit court did not abuse its discretion in admitting thisevidence.

Finally, we find that the probative value of theevidence was not outweighed by the risk of unfair prejudice. Thejury was instructed that the evidence concerning the unchargedconduct had been received on the issue of defendant's identification and could be considered only for that limited purpose. Illinois Pattern Jury Instructions, Criminal, No. 3.14 (4th ed.2000); see People v. Maxwell, 148 Ill. 2d 116, 131-32, 592 N.E.2d960, 967 (1992).

Edra Thames received a collect call on May 30, 1998,allegedly from the Macomb Hospital. The caller identifiedhimself as her grandson and requested money for his car payment. The caller ultimately convinced Thames to send $1,500 via WesternUnion to Daniel Lee Rohlfs.

Curtis Anders, a McLean County jail employee, testifiedthat on June 2, 1998, a money order for Rohlfs was picked up atthe Kroger store in Bloomington. The money order was sent byEdra Thames. The money order was tendered to Rohlfs, and heendorsed it, but the funds were never credited to Rohlfs' account. Instead, the money order was given to Detective Springer,who had been investigating the jail telephone scam.

A person commits theft by deception when he knowingly"[o]btains by deception control over property of the owner." 720ILCS 5/16-1(a)(2) (West 1998). Illinois courts have held that tosustain a conviction of theft by deception, the State must provebeyond a reasonable doubt that (1) the victim was induced to partwith money, (2) the transfer of the money was based upon deception, (3) defendant intended to permanently deprive the victim ofthe use or benefit of the money, and (4) defendant acted withspecific intent to defraud the victim. People v. McManus, 197Ill. App. 3d 1085, 1096, 555 N.E.2d 391, 399 (1990). Rohlfschallenges the sufficiency of the evidence, claiming that theState failed to prove that he actually "obtained" control overEdra Thames' money. He argues that the State must prove heactually received money, not simply possession of the check.

Rohlfs' argument hinges upon the second element of thecrime. He directs us to People v. Morrison, 260 Ill. App. 3d775, 791, 633 N.E.2d 48, 60 (1994), vacated, 157 Ill. 2d 514,515, 640 N.E.2d 630 (1994), where we stated the second elementrequired that defendant "obtained the money by deception." Whilethe language of the second element that we set forth in Morrisondiffers slightly from that in McManus, it is a distinctionwithout a difference.

Illinois statutes define "obtain" as follows: "[i]nrelation to property, to bring about a transfer of interest orpossession, whether to the offender or to another." 720 ILCS5/15-7(a) (West 1998). The jury was instructed on this definition of "obtain." Rohlfs was charged with theft by deception inthat he "obtain[ed]," by deception, "control over" $1,500 belonging to Edra Thames, intending to permanently deprive her of thatmoney. 720 ILCS 5/16-1(a)(2) (West 1998). Here, Rohlfs not onlytook physical possession of the check, he also endorsed thecheck, taking the necessary step to transfer the funds to hispossession. The fact that jail officials intercepted the checkbefore Rohlfs could actually make use of the funds is immaterial. See People v. Blitstein, 192 Ill. App. 3d 281, 285, 548 N.E.2d664, 666-67 (1989) (offense of theft by deception which allegedthat defendant obtained by deception control over property ofanother, to wit, checks or orders for payment of money in excessof $300, was complete when defendant obtained control over acheck from the victim, and not when he later cashed the check).

Contrary to Rohlfs' assertion, the State presentedsufficient evidence for the trier of fact to find all the essential elements of theft by deception beyond a reasonable doubt. Areviewing court will not overturn the fact finder's verdictunless the evidence is so unreasonable, improbable, and unsatisfactory as to leave a reasonable doubt as to the defendant'sguilt. People v. Brown, 169 Ill. 2d 132, 152, 661 N.E.2d 287,296 (1996). Having reviewed the record before us, we find thatthe evidence was not so unreasonable, improbable, or unsatisfactory as to leave a doubt of Rohlfs' guilt.

Defense counsel was appointed on June 26, 1998. On thesame date, the circuit court entered an "initial reimbursementorder for court[-]appointed counsel." Rohlfs was ordered to payreimbursement in the amount of $200. The court found this amountto be reasonable and within Rohlfs' ability to pay.

In People v. Love, 177 Ill. 2d 550, 563, 687 N.E.2d 32,38 (1997), the Supreme Court of Illinois held that an appointed-counsel fee-payment hearing must be held. The circuit court mustconsider "the foreseeable ability of the defendant to pay reimbursement[,] as well as the costs of the representation provided[,]" before a payment order can be entered. Love, 177 Ill.2d at 563, 687 N.E.2d at 38. Since counsel had just been appointed and provided no representation at the time the reimbursement order was entered, there could have been no consideration ofthe cost of the representation provided. The State acknowledgesthat the required hearing was not held. Therefore, we vacate thereimbursement order and remand this cause for an appointed-counsel fee-payment hearing as required by Love.

V. FINES AND COSTS ASSESSMENT

Rohlfs asserts that the fines and costs imposed by thecircuit clerk in a postsentencing "Notice to Defendant" must bevacated. The order for judgment and sentence, signed by thejudge, left the amount of fines and costs portion of the orderblank. Specifically, Rohlfs argues that the $20 fine under theViolent Crime Victims Assistance Act (725 ILCS 240/10 (West 1996)(effective June 1, 1997)) was improper because it must be imposedby the court, not the clerk. In response, the State notes thatthe relevant statute was amended in 1997, allowing the clerk toimpose the fine. Pub. Act 89-688,