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No. 3--03--0990
(Consolidated with Nos. 3--03--0991, 3--03--0992 and 3--03--0993)

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2004

The defendant, Patrick Flynn, was charged by indictment withseveral offenses, including five counts of business transactionfraud. 815 ILCS 5/12(J)(2) (West 2000). He moved to dismiss thebusiness transaction fraud counts, claiming that the indictmentwas insufficient because it did not include the required mentalstate for those offenses. The trial court granted defendant'smotion. On appeal, the State contends that: (1) the trial courterred in considering the motion to dismiss because it was nottimely filed; and (2) the court erred in granting the motionbecause the indictment adequately alleged the required mentalstate for business transaction fraud. We reverse and remand forfurther proceedings.

The State charged defendant in a "second superseding bill ofindictment" with 15 counts of theft and 5 counts of businesstransaction fraud. Each of the business transaction fraud countsalleged that defendant, while acting as an investment advisor tovarious clients over 60 years of age, "engaged in a course ofbusiness that operated a fraud and deceit" upon them. The Statealleged defendant made false statements to his clients that hewould place their money in insured, guaranteed and safeinvestments, and that the clients lost substantial sums of moneyas a result of their reliance on defendant's false statements.

On the second day of the bench trial, defendant filed amotion to dismiss the business transaction fraud counts. In hismotion, defendant claimed that the indictment was fatallydefective because it failed to allege a mental state, which is anecessary element of the offense of business transaction fraud.

The trial court granted defendant's motion to dismiss. TheState filed a notice of appeal, and the court entered an ordersuspending the bench trial pending resolution of the appeal.

The State's first contention on appeal is that the trialcourt erred in considering defendant's motion to dismiss becauseit was not timely filed.

Defendant's motion to dismiss challenged the sufficiency ofthe indictment to charge an offense. Such a claim implicates dueprocess concerns and may be raised at any time. See People v.DiLorenzo, 169 Ill. 2d 318, 662 N.E.2d 412 (1996); People v.Larson, 296 Ill. App. 3d 647, 695 N.E.2d 524 (1998). Therefore,the trial court did not err in considering the motion to dismisswhich was filed after the trial began.

The State also contends that the trial court erred ingranting the motion to dismiss because the indictment adequatelyalleged the elements, including the required mental state, forbusiness transaction fraud.

When the sufficiency of an indictment has been challenged attrial, the correct standard of review is whether the indictmentstates the nature of the offense and adequately sets forth eachof the elements. People v. Johnson, 231 Ill. App. 3d 412, 595N.E.2d 1381 (1992); People v. Young, 220 Ill. App. 3d 488, 581N.E.2d 241 (1991). An indictment that charges an offense in thelanguage of the statute will be deemed sufficient when the wordsof the statute so far particularize the crime that by their usealone a defendant is apprised with reasonable certainty of theprecise offense with which he is charged. People v. Meyers, 158Ill. 2d 46, 630 N.E.2d 811 (1994). An indictment is notdefective for failing to allege a mental state for an offensewhen the statute defining that offense does not include a mentalstate. People v. Lee, 294 Ill. App. 3d 738, 691 N.E.2d 117(1998); People v. Bofman, 283 Ill. App. 3d 546, 670 N.E.2d 796(1996). The relevant inquiry is whether the indictment providessufficient particularity to enable the defendant to prepare aproper defense. Meyers, 158 Ill. 2d 46, 630 N.E.2d 811.

Defendant acknowledges that the statute defining businesstransaction fraud does not include a specific intent as anelement. We agree that the statute does not include a requiredmental state for the offense. See 815 ILCS 5/12(J)(2) (West2000). Accordingly, an indictment charging this offense need notspecifically allege a mental state to be sufficient.

When a statute defining an offense does not provide a mentalstate, the applicable mental state can be any of the following:intent, knowledge or recklessness. 720 ILCS 5/4--3(b), 4--4, 4--5, 4--6 (West 2000). In this case, the indictment alleges thatdefendant engaged in a course of business that operated as afraud or deceit upon his clients. Fraud is generally defined asa knowing misrepresentation of the truth or a concealment of amaterial fact to induce another to act to his detriment. Black'sLaw Dictionary 670 (7th ed. 1999). Given this definition, commonsense dictates that a person committing a fraud has actedknowingly or intentionally. Cf. People v. Jones, 149 Ill. 2d288, 595 N.E.2d 1071 (1992) (information charging armed robberyimplicitly set forth mental state required to sustain lesserincluded offense of theft because common sense dictates that aperson who commits robbery either intentionally or knowinglydeprives the owner permanently of his property). Based on thesecircumstances, we conclude that the mental state for the offenseof business transaction fraud is implied by the languagecontained in the indictment.

In sum, we find that the indictment, which tracks thelanguage of the statute, is sufficient to apprise defendant withreasonable certainty of the precise offense charged, and toenable him to prepare a proper defense. Accordingly, we reversethe trial court's order dismissing the five counts of businesstransaction fraud and remand this matter for further proceedings.

For the foregoing reasons, the judgment of the Will Countycircuit court is reversed, and this matter is remanded forfurther proceedings.

Reversed and remanded.

BARRY and LYTTON, JJ., concur.