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People v. Tolbert
State: Illinois
Court: 5th District Appellate
Docket No: 5-98-0170 Rel
Case Date: 07/26/2001
                        NOTICE
Decision filed 07/26/01.  The text of this decision may be changed or corrected prior to the filing of a Petition for Rehearing or the disposition of the same

NO. 5-98-0170

IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT


THE PEOPLE OF THE STATE OF ILLINOIS,

     Plaintiff-Appellee,

v.

ELIZABETH H. TOLBERT,

     Defendant-Appellant.

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Appeal from the
Circuit Court of
Hardin County.

No. 95-CF-35

Honorable
Thomas H. Sutton,
Judge Presiding.



JUSTICE MAAG delivered the opinion of the court:

The State filed an information in the circuit court of Hardin County on July 29, 1995,charging Elizabeth H. Tolbert (defendant), James M. Sanford, defendant's brother, and ChrisReed, also known as Chris Olveda, with the offense of first-degree murder in violation ofsection 9-1(a)(1) of the Criminal Code of 1961 (Code) (720 ILCS 5/9-1(a)(1) (West 1994)). The information specifically charged that each of the foregoing people, without lawfuljustification, shot Wilson D. Tolbert, Jr., knowing said act would cause his death. Anamended information was filed on January 17, 1996, charging defendant with first-degreemurder for shooting Wilson on May 24, 1995. Additionally, the amended complaint chargeddefendant with conspiracy to commit first-degree murder. More specifically, it alleged thatdefendant had agreed with Sanford that a murder should be committed and then furnishedSanford transportation to the scene of the murder in violation of section 8-2(a) of the Code(720 ILCS 5/8-2(a) (West 1994)). We note parenthetically that Sanford was convicted offirst-degree murder and conspiracy to commit first-degree murder in 1996. People v.Sanford, No. 5-97-0062 (1998) (unpublished order under Supreme Court Rule 23 (166 Ill.2d R. 23)). The circuit court severed the three prosecutions early in the proceedings of thiscase, and the issues raised herein refer only to defendant's case.

On March 27, 1996, defendant pleaded guilty to a charge of first-degree murder forher involvement in the death of her husband. In exchange for her plea, the State dismissedthe accompanying charge of conspiracy to commit first-degree murder and recommendeda sentence of 45 years' imprisonment. On May 5, 1997, defendant filed a motion towithdraw her guilty plea. The motion to withdraw was granted subsequent to a hearing. Following a jury trial, defendant was convicted of first-degree murder and conspiracy tocommit first-degree murder. The circuit court sentenced defendant to 60 years'imprisonment. Defendant appeals.

Initially, we note that defendant has filed a motion to strike the "facts" section of theState's brief. The State filed an objection and the motion was taken with the case. Afterreviewing the "facts" section of the State's brief, we note that there are several comments inthat section that constitute argument and are, therefore, improper pursuant to Supreme CourtRule 341(e)(6) (177 Ill. 2d R. 341(e)(6)). Even though we are denying defendant's motionto strike the "facts" section of the State's brief, we will ignore the offensive parts of thatsection and note that they do not enter into our decision in this case.

Defendant initially claims that the circuit court erred when it allowed the introductionof other-crimes evidence, when testimony was given regarding the fraudulent loans securedby defendant far in advance of the offenses charged. Defendant also claims that reversibleerror occurred because the circuit court failed to give a limiting instruction on other-crimesevidence. Defendant is apparently claiming that the evidence of fraudulent loans wasintroduced to prejudice the jury against her since it showed evidence of defendant's othercriminal acts. Defendant claims that since she was charged with first-degree murder andconspiracy to commit first-degree murder, the other criminal acts had nothing to do with thecase at hand. We disagree.

Other-crimes evidence is relevant for any purpose other than to show a defendant'spropensity to commit a crime. People v. Luczak, 306 Ill. App. 3d 319, 324, 714 N.E.2d 995,999 (1999). This type of evidence is prejudicial because a jury might convict the defendantbecause it believes that she is a bad person and deserves punishment. People v. Markiewicz,246 Ill. App. 3d 31, 37, 615 N.E.2d 869, 874 (1993). Other-crimes evidence may berelevant and admissible, however, for any other legitimate purpose, such as to prove modusoperandi, the defendant's state of mind, consciousness of guilt, the absence of an innocentframe of mind or the presence of criminal intent, the circumstances or context of defendant'sarrest, the circumstances of the crime charged that would otherwise be unclear, how anotherwise implausible fact relating to the crime charged arose, the placement of thedefendant in proximity to the time and place of the crime, the identification of the weaponused in the crime, whether the crime charged was actually committed, opportunity orpreparation, a dislike for or an attitude toward the victim, knowledge, intent, identity,motive, or the absence of mistake or accident (Luczak, 306 Ill. App. 3d at 324, 714 N.E.2dat 999; People v. O'Toole, 226 Ill. App. 3d 974, 991, 590 N.E.2d 950, 961-62 (1992)), if theprobative value outweighs the risk of unfair prejudice. Markiewicz, 246 Ill. App. 3d at 38,615 N.E.2d at 874. This list of purposes " 'should not be taken to mean that these are theonly purposes for which evidence of other crimes may be admitted.' " O'Toole, 226 Ill. App.3d at 991, 590 N.E.2d at 962 (quoting People v. Kimbrough, 138 Ill. App. 3d 481, 486, 485N.E.2d 1292, 1297 (1985)). In fact, the Illinois Supreme Court has stated that evidence ofother crimes is admissible if it is relevant to establish any material issue other than thepropensity to commit crime. People v. Stewart, 105 Ill. 2d 22, 62, 473 N.E.2d 840, 860(1984). Evidence is relevant if it tends to make the existence of any fact of consequencemore or less probable than without the evidence. People v. Young, 263 Ill. App. 3d 627,639, 635 N.E.2d 473, 483 (1994). Although any evidence that tends to show that an accusedhad a motive for killing the decedent is relevant, to be competent it must at least, to a slightdegree, tend to establish the existence of the motive relied on. Stewart, 105 Ill. 2d at 56, 473N.E.2d at 857.

It is within the sound discretion of the circuit court to determine whether the evidenceof other crimes is relevant to a material issue and whether the probative value outweighs itsprejudicial impact. Luczak, 306 Ill. App. 3d at 327, 714 N.E.2d at 1001. The circuit court'sruling as to the admissibility of such evidence will not be reversed absent a clear showingof an abuse of discretion. People v. Oaks, 169 Ill. 2d 409, 454, 662 N.E.2d 1328, 1348(1996). An abuse of discretion occurs when the circuit court's decision is arbitrary, fanciful,or unreasonable or where no reasonable person would take the view adopted by the circuitcourt. Markiewicz, 246 Ill. App. 3d at 38, 615 N.E.2d at 875.

Defendant specifically complains about the testimonies of Norman Graham, branchmanager of American General Finance, and Larry Barnard, vice president of Illinois OneBank. Graham testified regarding two separate notes that defendant and her husband hadwith American General Finance. One loan was made on May 17, 1993. Graham recalledthat the loan was applied for by defendant and a man representing himself to be Wilson. Theman carried a driver's license with Wilson's name and a picture of Sanford. The first loanwas paid by a renewal, when more funds were added to it and a new note was signed. Defendant provided a verification of income by presenting a signed check from Reed'sMarket (Olveda's parents' business) that Olveda provided to her. The second note was paidby credit life insurance when Wilson was killed. Graham also agreed that approximately$42,000 in life insurance benefits had been paid to Wilson's two children.

Barnard stated that he had worked for Illinois One Bank, which had been known byvarious names, for the previous eight years as senior loan officer and vice president. Barnard testified regarding old loans that Wilson had with the bank prior to his marriage todefendant. One of the loans was a note for a mortgage, and his signature had been notarizedby a bank employee, Lisa Daughenbaugh, now Lisa Daymon. Barnard also testifiedregarding the questioned bank documents, which consisted of a consumer credit application,a residential real estate loan application, a promissory note, and a mortgage instrument. Allof these documents bear defendant's and Wilson's signatures and were signed in August andSeptember of 1993. Barnard also noted that he had obtained a copy of a driver's licensebearing Wilson's name, but not his picture. The driver's license was issued on September21, 1993.

Additionally, Steven D. Hampton, a forensic scientist with the Illinois State Police,testified that his job is to examine questioned documents. Hampton compared Wilson'sknown signatures to signatures from the questioned documents. Hampton also reviewedwriting samples from defendant and Sanford. Hampton stated that Wilson had not signedthe American General Finance documents or the questioned bank documents. Hamptonopined that defendant and Sanford had signed the questioned documents.

In the case at bar, the foregoing testimonies were necessary and relevant to establishdefendant's motive for wanting Wilson dead. A review of the record shows that defendantand Sanford were drug addicts and that they were desperate for money. The evidenceshowed that their drug habits were being supported by Wilson's income and the fraudulentloans that defendant and Sanford obtained by forging Wilson's signature. The testimony atthe trial showed that approximately 1

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