                                                                         THIRD DIVISION

                                                                             June 7, 2006




No. 1-05-1236



THE PEOPLE OF THE STATE OF ILLINOIS, )                   Appeal from the
                                                         )     Circuit Court of
                     Plaintiff-Appellee,          )      Cook County.
                                                         )
v.                                                       )
                                                         )
ROSA AGUILAR,                                            )     Honorable
                                                         )     James B. Linn,
                     Defendant-Appellant.         )      Judge Presiding.


       JUSTICE KARNEZIS delivered the opinion of the court:

       Following a bench trial, defendant, Rosa Aguilar, was convicted of loan fraud

(720 ILCS 5/16H-30 (West 2004)) and sentenced to two years' probation. On appeal,

defendant contends that the State failed to prove her guilty beyond a reasonable doubt

by failing to present evidence of her specific intent to defraud.

       The evidence adduced at trial demonstrated that, in April 2004, defendant and

her brother met with Maria Garcia, a loan officer at Bank One, in order to secure a

refinance loan for $144,500. On the loan application, defendant listed "XXX-XX-XXXX" as

her social security number. While the loan request was being processed, a member of

the Bank One security department suspected that defendant presented a fraudulent
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security number and called the police indicating the same. Further investigation by the

Social Security Administration Office of the Inspector General revealed that there was

no valid social security card issued under defendant's name and birth date. In May

2004, defendant and her brother attended a closing for the loan, where they each

completed a proof of identity affidavit. Defendant submitted a social security card

bearing the number "XXX-XX-XXXX" and her driver's license reflecting the same social

security number and signed the affidavit. The police were aware of the closing and

arrested defendant upon her completion of the affidavit.

       Detective Edward Record testified that, after being read the Miranda warnings,

defendant admitted that her social security card was "fake" and "illegal," and that she

purchased it 11 years prior. She stated that she never used the social security card for

employment. Record confiscated the social security card, two driver's licenses,

defendant's Hyatt Hotel employee card and her health club card. Record returned all of

the documents, except for the social security card, to defendant after making copies.

       Defense counsel made a motion for directed finding of acquittal, arguing, inter

alia, that there was insufficient evidence of defendant's intent to defraud. In denying the

motion, the trial court stated:

              "I've heard the evidence thus far. I find the witnesses who testified

       *** to be credible.

              Banks, even though in this case the bank didn't actually lose any

       money and there appeared to be sufficient collateral for a loan, they have



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       an absolute right to know who their borrowers are and know who they are

       dealing with and loaning large amounts of money to.

              In this case the [s]ocial [s]ecurity number was a part of the

       application, and it appears that it was a necessary part, and that this loan

       obviously would not have been approved or gotten even to first base

       without a [s]ocial [s]ecurity number.

              [Defendant] had a phony [s]ocial [s]ecurity card that she admitted to

       the police that she knew was phony, that she bought on the street and

       was using it *** for purposes of this loan.

              I notice that there is a driver's license, as well, that has that [s]ocial

       [s]ecurity number. I believe this is what the statute had in mind. I do

       believe that at this stage of the trial the Government has met their burden

       of proof."

The defense subsequently rested its case. In closing argument, defense counsel

argued that, at most, the State demonstrated that defendant committed attempted loan

fraud. In response, the trial court stated:

              "Well, I don't believe that this was just an attempt. This was

       actually done.

              The papers were filled out. It was more than an attempt. She

       actually had done the deed. I believe the Government has met their

       burden of proof beyond a reasonable doubt."



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Defendant was found guilty of loan fraud and sentenced to two years' probation. This

timely appeal followed.

       Defendant contends that the State failed to prove her guilty beyond a reasonable

doubt by failing to present evidence of her specific intent to defraud. The State

responds that it sufficiently proved its case by presenting evidence that she

"purposefully supplied a fake social security card" to the bank in order to obtain the

desired loan.

       When reviewing the sufficiency of the evidence, it is necessary to determine

"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." (Emphasis in original.) Jackson v. Virginia, 443 U.S. 307, 319, 61

L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789 (1979). It is not the function of this court to

retry the defendant or substitute our judgment for that of the trial court. See People v.

Evans, 209 Ill. 2d 194, 209, 808 N.E.2d 939, 947 (2004). The trier of fact assesses the

credibility of the witnesses, determines the appropriate weight of the testimony and

resolves conflicts or inconsistencies in the evidence. Evans, 209 Ill. 2d at 211, 808

N.E.2d at 948-49. In order to overturn the judgment, the evidence must be "so

unsatisfactory, improbable or implausible" to raise a reasonable doubt as to the

defendant's guilt. People v. Slim, 127 Ill. 2d 302, 307, 537 N.E.2d 317, 319 (1989).

       A defendant is guilty of loan fraud when the State proves beyond a reasonable

doubt that "the person knowingly, with intent to defraud, makes any false statement or



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report *** for the purpose of influencing in any way the action of a financial institution to

act upon any application *** or loan, or any change or extension of any of the same, by

renewal *** or otherwise." 720 ILCS 5/16H-30 (West 2004). Intent to defraud is a

question of fact, which may be proved by circumstantial evidence and inferred from the

facts and circumstances surrounding the transaction. See People v. Moran, 260 Ill.

App. 3d 154, 160-61, 632 N.E.2d 1115, 1119 (1994) (describing specific intent to

defraud as an element of theft by deception); see also People v. Schwartz, 222 Ill. App.

3d 1041, 1048, 584 N.E.2d 873, 877 (1991) (describing specific intent to defraud as an

element of aggravated home repair fraud); People v. McManus, 197 Ill. App. 3d 1085,

1096, 555 N.E.2d 391, 399 (1990); People v. Rolston, 113 Ill. App. 3d 727, 731, 448

N.E.2d 965, 967-68 (1983).

       In the instant case, defendant presented a false social security number, that she

admitted was illegally purchased, in order to secure a loan. Contrary to defendant's

belief that the trial court presumed intent to defraud absent evidence, the record

demonstrates that the court was presented with sufficient circumstantial evidence to

prove defendant's intent. Defendant focuses on the fact that her brother cosigned the

loan, that there was no evidence that she used the false social security number to

defraud in the past and that there was no evidence presented that she had defaulted on

the original mortgage or planned on defaulting on the refinanced loan. The statute,

however, does not require evidence that the defendant intended to fail to repay the loan

(see 720 ILCS 5/16H-30 (West 2004)). The American Heritage Dictionary defines



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defraud as "to take something *** by fraud" and "to cheat." American Heritage

Dictionary 364 (3d ed. 1997). The evidence clearly showed that defendant presented a

false social security number to secure a loan that she would not have obtained without

that number. Defendant presented fraudulent information with the intent to receive a

subsequent loan.

       Furthermore, we agree with the trial court that this activity was what the

legislature had in mind when creating this statute. The legislature stated:

              "It is the public policy of this State that the substantial burden

       placed upon the economy of this State resulting from the rising incidence

       of financial crime is a matter of grave concern to the people of this State

       who have a right to be protected in their health, safety and welfare from

       the effects of this crime." 720 ILCS 5/16H-5 (West 2004).

Regardless of whether defendant intended to repay the loan, defendant's actions would

have had an economic effect on the public while that loan was outstanding. Banks

assess their risk based upon information such as that supplied by a social security

number. Protecting this right of banks is exactly what the legislature designed this

statute to accomplish. Therefore, we find that a rational trier of fact could have found

that defendant committed all of the elements of loan fraud beyond a reasonable doubt.

       Accordingly, the judgment of the circuit court of Cook County is affirmed.

       Affirmed.

       THEIS and ERICKSON, JJ., concur.



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