Illinois Appellate Court Reports
PEOPLE v. ARNDT, 351 Ill. App.3d 505 (2004) 814 N.E.2d 980
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
FREDERICK ARNDT, Defendant-Appellant. No. 2-03-0660.
Appellate Court of Illinois, Second District. Opinion filed
August 18, 2004. Page 506
Appeal from the Circuit Court of Lake County; the Hon.
Christopher C. Starck, Judge, presiding. Page 507
Zachary M. Bravos, of Law Offices of Zachary M. Bravos, of
Wheaton, for appellant.
Michael J. Waller, State’s Attorney, of Waukegan (Martin P.
Moltz and Sally A. Swiss, both of State’s Attorneys
Appellate Prosecutor’s Office, of counsel), and Catherine
A. Voigt, of Glen Ellyn, for the People.
JUSTICE BOWMAN delivered the opinion of the court:
After a bench trial, defendant, Frederick Arndt, was found
guilty of two counts of indecent solicitation of a child
under section 11-6 of the Criminal Code of 1961 (Code) (720
ILCS 5/11-6 (West 2002)). The trial court sentenced him to
30 months of probation with various conditions. On appeal,
defendant argues that (1) he was not proven guilty beyond a
reasonable doubt; (2) he was entrapped; (3) a fatal variance
existed between the indictment and the proof at trial; and
(4) section 11-6 violates the first amendment. We affirm.
On April 10, 2002, defendant was charged by indictment with
two counts of indecent solicitation of a child. Both counts
alleged that, between August 1, 2001, and March 10, 2002,
defendant “knowingly solicited a child he believed to be
under the age of 17, to do an act of sexual penetration
which if done would have been Aggravated Criminal Sexual
Abuse.” At trial, the State presented five exhibits that
defendant stipulated were admissible.
Exhibit No. 1 consisted of the stipulated testimony of
Detective Mark Pleasant, an investigator with the Lake
County State’s Attorney’s office who was assigned to the
Lake County Children’s Advocacy Center. As reflected in his
reports, Pleasant signed onto America Online (AOL) using
several fictitious profiles of teenage girls under different
screen names. Beginning in August 2001, Pleasant had
several Internet contacts with defendant, who used the
screen name “ARhino6575.”
On August 9, 2001, Pleasant had an instant message
conversation with defendant while using the screen name
“Kristin15IL.” Kristin15IL’s online profile stated that she
was a 15-year-old female from Waukegan. Defendant began the
conversation by asking whether she liked older guys.
Kristin15IL informed defendant that she was 15 years old and
defendant represented that he was 28. During the course of
their conversation, defendant repeatedly asked her what she
liked to “do” with guys and whether she used birth control
pills and condoms.
On September 13, 2001, under the screen name “GirlinIL,”
Pleasant entered a chat room called “Places-Chicago.”
GirlinIL’s online profile stated that she was a 15-year-old
female from Lake County Page 508 named Loren. Although
Pleasant did not engage in any conversation in the chat
room, GirlinIL received a message from defendant later that
day. During the instant message conversation, defendant
asked GirlinIL whether she liked older men. Defendant
represented that he was 34 years old; GirlinIL responded
that she was 15. Defendant asked GirlinIL what she looked
like and whether she liked “to be with older men” sexually.
Defendant also asked for details of her previous sexual
experiences and whether she was taking birth control pills.
Defendant asked if she would like him to “pull out” before
ejaculating and suggested that she perform oral sex on him.
In addition, defendant inquired whether GirlinIL would like
to meet an older man, although he stated that he would keep
their relationship secret because of their ages. Defendant
indicated that people would think they “were father and
daughter or relatives.” Defendant informed her that he
liked to date younger women because he could teach them what
a man “likes in bed.” He further informed her that he had
met a 16-year-old girl online and that they had had sex.
Defendant asked GirlinIL where she lived and where and when
they could meet. GirlinIL responded that she was deaf and
tutored at home. As a result, she could meet him or chat
with him only when her mother was at work and her tutor was
not present. Pleasant then sent defendant a picture of
GirlinIL, which was actually a picture of a female Lake
County deputy when she was 15 years old. At the end of
their conversation, defendant asked GirlinIL if she would
let him know when she would be ready to have a baby with
him. She responded that she was only 15 years old, that
defendant was playing a “big joke” on her, and that she was
hurt and “pissed.” GirlinIL signed off.
On September 21, 2001, Pleasant received a one-line message
from defendant after entering a chat room under the screen
name of “Kaytea847.” Kaytea847’s profile stated that she
was a 14-year-old female from Waukegan. However, Pleasant,
posing as Kaytea847, never replied.
In January 2002, GirlinIL sent defendant an instant message
indicating that he was on her “buddy list,” but she could
not remember why. Defendant responded that they had talked
a few times before and that she liked older men. GirlinIL
indicated that she had just turned 16 years old, although
she did not have a driver’s license. Defendant stated that
he was 44 years old. Defendant then asked if she wanted to
meet at her house and what she would like to do with him
when they met. GirlinIL responded, “[I] mean we said we
liked each other and im [sic] prety [sic] sure we probly
[sic] said we wanted to [you] kno [sic] like have sex.”
Defendant also asked whether she Page 509 was taking birth
control pills, stated that it “would be cool” if she were
not, and asked whether she would stop taking them for the
“right man.”
Between January and March 2002, GirlinIL and defendant
exchanged e-mails and had numerous instant message
conversations. During this time, GirlinIL repeatedly
indicated to defendant that she did not want her mother to
catch her talking to him or meeting with him. In addition,
she often referred to her school obligations and schedule.
They discussed meeting at a local shopping mall, although
GirlinIL stated that she could not meet on a school night.
GirlinIL indicated that she could tell her mother that she
was meeting friends at the mall and then have her mother
drop her off and pick her up.
Defendant and GirlinIL eventually agreed to meet at the
mall, near entrance J, on Saturday, February 23, 2002.
Defendant asked her what she would like to do when they
met, and GirlinIL replied that, if they liked each other,
they could hang out and “mess around.” Defendant asked if
she was menstruating and taking birth control pills.
GirlinIL responded that she was taking birth control pills
but did not have her period at that time. Defendant then
cancelled the February 23 meeting, stating that there was
an emergency concerning his daughter.
After a series of e-mails, defendant and GirlinIL arranged
another meeting at the same location at the mall on March
8, 2002. Defendant stated that he wanted to make
“passionate love” to her and that they could go to a motel.
Defendant also asked GirlinIL when she was scheduled to get
her period and whether she took birth control pills during
that time. He again referred to having a baby with her,
telling her that he always wanted to “cum” inside of her,
even if she were not taking birth control pills.
Defendant told GirlinIL to wear “something sexy” and that
he would be wearing blue jeans, a black button-down shirt,
a black leather jacket, and glasses. According to
Pleasant’s report, surveillance was set up at the mall on
March 8. At 12:20 p.m., a man matching defendant’s
description entered the mall at entrance J. When asked his
name, defendant replied, “Fred Arndt.” Defendant was then
placed under arrest and informed of his Miranda rights.
When questioned, defendant initially responded that he was
at the mall to do some shopping. Then, he admitted that he
was there to meet a girl named Loren, whom he had met
online under the screen name “GirlinIL.” Defendant stated
that he had met GirlinIL in a chat room called “I Like
Older Men” and that she was 18 years old. Since she had told
him that she was 18, he assumed that she went to college.
Defendant denied that GirlinIL had sent him a picture.
Page 510
Defendant admitted that he and GirlinIL had talked about
sex, but stated that he did not intend to have sex with her
after their meeting. Instead, he planned to meet her, look
at her driver’s license to make sure that she was 18 years
old, and then “go from there.” According to defendant, it
was “possible” that they would have had sex, if they liked
each other. GirlinIL had indicated that sex “might happen,”
but defendant had not really thought about it. Defendant
decided to go to the mall to do some shopping and see what
she looked like.
Pleasant confronted defendant with the fact that he, posing
as GirlinIL, had told defendant that Loren was age 15 or
16. Defendant replied that he thought she was lying about
her age, since a lot of girls misrepresented themselves
online. However, there was nothing specific in their
communications that made him think that she was lying.
Defendant stated that he was serious about having a baby
with GirlinIL, but he would have had sex with her only if
she were over 18.
According to defendant, he lied when he told GirlinIL that
he had had sex with a 16-year-old girl whom he had met
online. However, he admitted talking about sex online with
other females under the age of 17. In particular, he had
corresponded with a girl using the screen name “Ohiokid14,”
but defendant thought that she might have been lying about
her age.
Pleasant showed defendant copies of the communications he
had with GirlinIL, Kristin15IL, and Kaytea847, as well as
copies of their profiles. Defendant admitted having instant
message conversations with Kristin15IL and Kaytea847, but
denied seeing their profiles. Defendant admitted reading
the profile for GirlinIL, but he did not recall meeting her
in the Places-Chicago chat room. Although he had exchanged
e-mails and instant messages with her, he did not remember
receiving the picture of her.
Police found in defendant’s coat pocket a blue
diamond-shaped pill that he claimed was cold medicine.
Defendant subsequently admitted that it was Viagra, for
which he had received a prescription the previous week.
Defendant asked Pleasant whether he could get an attorney
and “just plead guilty.” He then provided a written
statement indicating the following. Although GirlinIL
claimed to be 15, defendant believed that she was actually
18. At the mall, he thought that they would “just meet and
talk.” Defendant would have requested proof that she was 18,
and if she were underage, he would have walked away. In the
statement, defendant repeatedly indicated that they would
not have had sex unless she were at least 18 years old.
Police obtained from the mall a security videotape of
defendant that was entered into evidence as stipulated
exhibit No. 5. Page 511
Exhibit No. 2 contained stipulated documents from AOL,
detailing the ownership and activity of defendant’s account
under the screen name ARhino6575. Defendant’s AOL “buddy
list” included the screen names “Ohiokid14,” “tammyzxoxox,”
and “GirlinIL.” The online profiles for Ohiokid14 and
tammyzxoxox indicated that they were ages 14 and 15,
respectively.
Exhibit No. 4 consisted of the stipulated testimony of Paul
Swander, a police officer assigned to child sex cases with
the Van West County sheriff’s police in Ohio. Using the
screen name Ohiokid14, whose online profile stated that she
was a 14-year-old female, Swander had several Internet
communications with defendant in November and December
2001. During the course of their communications, defendant
asked Ohiokid14 if she would like to meet an older man and
lose her virginity to an older man. Defendant also asked
about her previous sexual experiences, whether she was
taking birth control pills, whether she would like to have a
baby with him, and whether she would keep the baby if she
became pregnant. Defendant asked Ohiokid14 when she last
menstruated, and then responded, “[C]ool then [you] might
be ovulating when [I] get there to see [you].” Further,
defendant told her that she would have three babies before
she was 18 and that she would have to raise them until she
was 18. Defendant also asked Ohiokid14 if she would like to
spend the weekend with him and if she would like him to get
her friends pregnant while she watched. Defendant wanted to
know when they could meet and how Ohiokid14 could arrange a
meeting since she lived with her grandmother. Ohiokid14
then provided defendant with her voice pager number and he
left her a few messages.
In addition, Swander had Internet communications with
defendant while using the screen name tammyzxoxox, whose
online profile stated that she was a 15-year-old female.
During an instant message conversation with tammyzxoxox in
December 2001, defendant asked whether she liked older men,
whether she was taking birth control pills, and what she
liked to do with men. He also asked about her previous
sexual experiences and described his own. Defendant stated
that he had had sex with a 19-year-old girl but wanted to
be with someone younger. He asked tammyzxoxox if any of her
friends had become pregnant after having sex with an older
man. In February and March 2002, defendant asked if she
wanted to meet him at a shopping mall.
Defendant testified that he was 45 years old, divorced, and
had two grown children. Although he had conversations in a
chat room with GirlinIL, he did not initiate any of the
conversations. According to defendant, he did not know the
age of GirlinIL, but he communicated Page 512 with her in
a chat room that was for individuals over the age of 18.
Based on the photograph, he could not tell her age, but he
assumed that she was over 18.
Defendant admitted that GirlinIL stated that she was age 15
or 16. However, based on his experience on the Internet, he
did not believe that either was her true age. Defendant had
misrepresented his age on the Internet and other users had
misrepresented their ages to him. Defendant presumed that
GirlinIL was 18 or older and he did not believe that the
photograph sent was actually of her. Defendant admitted
having conversations with GirlinIL about having a baby,
birth control pills, and her period. According to
defendant, he had never taken Viagra prior to his arrest,
but had one in his pocket because he was going to meet his
girlfriend after going to the mall.
Defendant testified that GirlinIL invited him to meet her
at the mall. On the first occasion, he did not go because
he did not want to meet anyone. Defendant went to the mall
the next time to go shopping, although he had no specific
store in mind. Defendant agreed to meet GirlinIL at the ice
rink and, after entering the mall, walked quickly to that
location to look for her. If she appeared to be underage, he
would have walked away.
The trial court found defendant guilty of both counts of
indecent solicitation of a child. According to the court,
defendant’s conversations indicated a fixation with ages
and attempts to lure underage girls into sexual
relationships with him. The court considered defendant’s
conversations with girls other than GirlinIL as evidence of
his plan, design, motive, intent, or lack of mistake.
Defendant filed a motion for a new trial, which the trial
court denied. In sentencing defendant, the court found
defendant’s talk of impregnating underage girls
particularly troubling. The trial court sentenced defendant
to 30 months’ probation with several conditions, including
12 months of periodic imprisonment, no contact with
children under the age of 18, sex offender treatment, no
Internet access except for employment purposes, and 200
hours of community service. Defendant’s timely notice of
appeal followed.
Defendant’s first argument on appeal is that the State
failed to prove him guilty beyond a reasonable doubt of
indecent solicitation of a child. When reviewing a
challenge to the sufficiency of the evidence, we consider
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. People v. Collins, 106 Ill. 2d 237, 261
(1985). We note that this standard of review applies
equally to bench trials. People v. Patterson, 314 Ill. App.
3d 962, 969 (2000). In applying this standard, our role is
not to Page 513 retry the defendant. Patterson, 314 Ill.
App. 3d at 969. Instead, the trier of fact determines the
weight to be given to the testimony of the witnesses, the
witnesses’ credibility, and the reasonable inferences to be
drawn from the evidence. Patterson, 314 Ill. App. 3d at 969.
A person commits the offense of indecent solicitation of a
child “if the person, with the intent that the offense of
aggravated criminal sexual abuse be committed,
knowingly solicits a child or one whom he or she believes
to be a child to perform an act of sexual penetration or
sexual conduct as defined in Section 12-12 of this Code.”
720 ILCS 5/11-6(a) (West 2002). “`Solicit’ means to
command, authorize, urge, incite, request, or advise
another to perform an act by any means including, but not
limited to, in person, over the phone, in writing, by
computer, or by advertisement of any kind.” 720 ILCS
5/11-6(b) (West 2002). A “child” is “a person under 17
years of age.” 720 ILCS 5/11-6(b) (West 2002).
Defendant first contends that the State failed to prove
that he “knowingly solicited a child he believed to be
under the age of 17.” Specifically, defendant contends that
all of his online conversations with Pleasant, posing as
GirlinIL, took place in chat rooms designated for persons
over the age of 18. According to defendant, communication in
an “over-age-18” chat room negates the intent to solicit a
minor. Because people role-play on the Internet and
misrepresent their ages, defendant believed that he was
communicating with an adult pretending to be under the age
of 17. Defendant thus concludes that he did not travel to
the mall to meet a child, but expected to meet an adult. We
disagree.
The specific intent required to prove the elements of the
offense of solicitation may be inferred from the
surrounding circumstances and the acts of the defendant.
People v. Ruppenthal, 331 Ill. App. 3d 916, 920 (2002). The
trier of fact makes the factual determination regarding a
defendant’s intent, and we will not disturb that
determination unless the evidence is so improbable that it
raises a reasonable doubt about the defendant’s guilt.
Patterson, 314 Ill. App. 3d at 969.
The evidence supports the trial court’s finding that
defendant believed GirlinIL to be under the age of 17. The
transcripts of their conversations make clear that GirlinIL
informed defendant several times that she was only 15 or 16
years old. Additionally, her profile stated that she was
only 15 years old. Defendant admitted that he read
GirlinIL’s profile and that she represented herself to be
age 15 or 16. Further, GirlinIL’s communication with
defendant was consistent with that of an underage girl.
Over the course of their conversations, she repeatedly told
defendant that she did not want her mother or her tutor to
catch her talking to him or meeting with him. She often
Page 514 referred to her school obligations and schedule,
did not want to meet on a “school night,” and did not have
a driver’s license. In fact, defendant admitted that
nothing specific in their communications made him think
that she was lying about her age. Rather, he communicated
that he would keep their relationship “secret” because of
their ages, and that people would think that they were
“father and daughter or relatives.” Defendant also told
GirlinIL that he had had sexual intercourse with a
16-year-old girl whom he had met online.
In addition, defendant’s other Internet conversations with
detectives posing as 14-year-old and 15-year-old females
reveal an intent to solicit underage girls for sexual
encounters. Defendant sent messages to Katea847, a
14-year-old female; Kristin15IL, a 15-year-old female;
Ohiokid14, a 14-year-old female; and tammyzxoxox, a
15-year-old female. In particular, defendant told
tammyzxoxox that he had had sexual intercourse with a
19-year-old girl but wanted to be with someone younger. As
the trial court noted, all of these conversations indicate
a fixation with ages and attempts to lure underage girls
into sexual relationships with him. Thus, there was ample
evidence to support the finding that defendant believed
GirlinIL to be under the age of 17.
Defendant also argues that the State failed to show that he
intended to engage in an act of sexual penetration with
GirlinIL. Defendant asserts that there was no discussion of
sexual activity related to his meeting with GirlinIL.
Further, he asserts that proof of his intent to engage in
sexual penetration with a child was lacking because he did
not, in fact, meet a child, and because he said he would
have walked away if GirlinIL appeared underage. We reject
this argument.
There was sufficient evidence to show that defendant
intended to engage in an act of sexual penetration with
GirlinIL. Contrary to defendant’s assertion, sexual matters
were discussed in direct relation to their meeting. For
example, defendant communicated that he wanted to make
“passionate love” to GirlinIL and that they could go to a
motel. He again referred to having a baby with her and
stated that he always wanted to “cum” inside of her, even
if she were not taking birth control pills. Further, with a
Viagra tablet in his pocket, defendant arrived at the
agreed-upon place, at the agreed-upon time, wearing the
clothing that he had described. See Patterson, 314 Ill.
App. 3d at 969-70 (defendant possessed specific intent to
commit the offense of aggravated criminal sexual abuse by
offering online to perform oral sex that day, arriving at
the agreed-upon place, at the agreed-upon time, and wearing
the clothing he had informed the minor he would be
wearing). Accordingly, there was no requirement that Page
515 defendant actually meet a child, since defendant
demonstrated his intent to commit the sexual acts discussed
by traveling to the mall to meet GirlinIL. See Ruppenthal,
331 Ill. App. 3d at 920 (defendant’s trip to Illinois for
the admitted purpose of meeting a girl he knew to be “about
15” exhibited his intent to engage in the sexual activity
discussed on the Internet).
Moreover, as stated earlier, defendant’s online
conversations with Kristin15IL, Ohiokid14, and tammyzxoxox
were similar to his conversations with GirlinIL. Defendant
asked these “underage girls” if they liked “older guys,” if
they used birth control, and about their sexual
experiences. Additionally, he specifically expressed a
desire to meet with Ohiokid14 and tammyzxoxox. Given this
pattern of behavior, defendant’s conversations with
GirlinIL, and his trip to the mall to meet her, there was
sufficient evidence to support his conviction of indecent
solicitation of a child.
Defendant next contends that the State failed to prove
beyond a reasonable doubt that he was not entrapped.
According to defendant, his conduct was incited and induced
by Pleasant, who entered an “adult-only” chat room and
pretended to be an adult role-player. Defendant contends
that his conversations with GirlinIL would have ended on
September 21, 2001, if Pleasant had not initiated contact
with him nearly five months later (on January 30, 2002). In
defendant’s view, Pleasant first brought up the subject of
sex, initiated the contacts on February 13 and 26, and
indicated a willingness to meet him after he cancelled the
first meeting. For these reasons, defendant concludes that
he was not predisposed to commit the offense.
The State counters that the defense of entrapment was not
available to defendant because he did not admit the
essential elements of the offense. Specifically, defendant
denied any knowledge or belief that GirlinIL was under the
age of 17, and he denied that he intended to commit an act
of sexual penetration with her if she appeared underage at
the mall. In the alternative, the State argues that, if
defendant properly raised the defense of entrapment, he was
predisposed to commit the offense.
Once an accused presents even slight evidence of
entrapment, the State must prove the absence of entrapment
beyond a reasonable doubt. People v. White, 249 Ill. App.
3d 57, 63 (1993). A defendant who raises entrapment as an
affirmative defense necessarily admits to committing the
crime, albeit because of improper governmental inducement.
People v. Rivas, 302 Ill. App. 3d 421, 432 (1998). This is
because it would be both factually and legally inconsistent
for a defendant to deny committing the offense and then to
assert as a defense that he committed the offense because
of incitement or inducement Page 516 by authorities.
People v. Gillespie, 136 Ill. 2d 496, 501 (1990). Thus, the
entrapment defense is not available to a defendant who
denies any of the facts constituting the offense charged,
including the requisite mental state. People v. Cooper, 239
Ill. App. 3d 336, 349 (1992). Nevertheless, “this does not
mean that a defendant who wishes to rely on the entrapment
defense cannot plead not guilty and force the State to its
proof on all the elements of the offense.” Cooper, 239 Ill.
App. 3d at 349. The question, as framed by the Appellate
Court, Fifth District, is what constitutes a sufficient
admission of commission of the offense to allow reliance
upon the entrapment defense. Cooper, 239 Ill. App. 3d at
349-50.
In this case, defendant asserted during discovery an
intention to raise the entrapment defense. In addition,
defendant presented “slight evidence” of entrapment at
trial by testifying that he did not initiate the Internet
communications with GirlinIL and that she invited him to
meet her at the mall. However, as the State points out,
defense counsel appeared to abandon this defense by failing
to argue entrapment in the opening statement, in the motion
for a directed finding, or in the closing argument. As a
result, the trial court did not make any express finding
with respect to entrapment. More important, we agree with
the State that defendant failed to admit essential elements
of the offense by denying that he (1) knew or believed
GirlinIL to be under the age of 17; and (2) intended to
engage in sexual conduct with her. Based on the above, the
defense of entrapment is unavailable to defendant.
Nevertheless, even if, arguendo, defendant had properly
raised the defense of entrapment, we would reject his
argument.
In order to establish entrapment, the evidence must show
(1) that the State improperly induced the defendant to
commit the crime; and (2) a lack of predisposition to
commit the crime on the part of the defendant. People v.
Watycha, 272 Ill. App. 3d 774, 780 (1995). The entrapment
defense is unavailable where the State has merely provided
the defendant an opportunity to commit the crime. Watycha,
272 Ill. App. 3d at 780. For this reason, the defendant’s
predisposition is generally the critical inquiry, and the
State must show that the defendant was ready and willing to
commit the crime in the absence of any persuasion by the
State. Watycha, 272 Ill. App. 3d at 780-81.
Defendant’s assertions that Pleasant initiated contact,
discussions of sex, and a meeting are not supported by the
record. In September 2001, Pleasant, posing as GirlinIL,
entered a chat room but did not engage in conversation.
Later that day, defendant contacted GirlinIL and asked if
she liked older men. Thus, the first contact was initiated
by defendant. Further, defendant first raised the subject
of sex during that conversation by asking GirlinIL about
her previous sexual experiences, Page 517 whether she
liked to be with older men sexually, and whether she was
taking birth control pills. Defendant asked GirlinIL if she
wanted him to “pull out” if they were together, and he
suggested oral sex. In addition, he asked where she lived,
and when and where they could meet. GirlinIL then signed
off when defendant asked when she would be ready to have a
baby with him.
Defendant’s predisposition to commit the offense is further
evidenced by his Internet communications with Kristin15IL,
tammyzxoxox, and Ohiokid14. For instance, in November and
December 2001, defendant had several conversations with
Ohiokid14, represented to be age 14, in which he asked if
she would like to lose her virginity to an older man.
Defendant asked about her previous sexual experiences,
whether she was taking birth control pills, and whether she
would like to have a baby with him. Defendant also asked
Ohiokid14 if she would like to spend the weekend with him,
wanting to know when and how they could meet since she
lived with her grandmother. Defendant engaged in similar
conversations with Kristin15IL and tammyzxoxox, both
represented to be age 15. In particular, defendant
suggested meeting tammyzxoxox at a shopping mall. Based on
this evidence, we conclude that defendant was ready and
willing to commit the offense in the absence of any
persuasion from the State. Consequently, the fact that
Pleasant reinitiated contact with defendant in January and
February 2002 merely provided defendant with the
opportunity to commit the crime, and defendant was not
entrapped.
Defendant next contends that there was a fatal variance
between the indictment and the proof at trial. Both counts
of the indictment alleged that defendant “committed the
offense of indecent solicitation of a child, in that said
defendant a person of 17 years of age and upwards,
knowingly solicited a child he believed to be under the age
of 17, to do an act of sexual penetration.” Although
defendant objected to the indictment at trial on the basis
that there was no evidence that an actual child was
involved in the offense, the trial court rejected this
argument. Specifically, defendant contends that there is a
variance between the charge that he “knowingly solicited a
child he believed to be under the age of 17,” and the proof
that he was communicating with an adult. According to
defendant, the indictment should have tracked the language
of the statute, which provides that a person commits the
offense of indecent solicitation of a child when he
solicits a “child or one whom he or she believes to be a
child.” 720 ILCS 5/11-6(a) (West 2002). The State counters
that no variance existed or, in the alternative, that any
variance was not fatal.
We consider the plain and ordinary meaning of the language
in the indictment as read and interpreted by a reasonable
person. People v. Page 518 Terry, 342 Ill. App. 3d 863,
868 (2003). A charging instrument is to be read as a whole,
and where a statute is cited in a count, the statute and
count are to be read together. People v. Hoffman, 146 Ill.
App. 3d 823, 833 (1986). To be fatal, a variance between
the charging instrument and the proof at trial must be
material and of such character that it misleads the accused
in making his defense or exposes him to double jeopardy.
People v. Pergeson, 347 Ill. App. 3d 991, 994 (2004).
We conclude that any variance between the indictment and
the proof at trial was neither material nor prejudicial to
defendant. The ordinary meaning of the language of the
indictment, considered with the language in section 11-6,
demonstrates that defendant was charged with soliciting
“someone” he believed to be under the age of 17. In
Ruppenthal, the court noted that the status of the person
solicited is not an element of the crime of solicitation
(Ruppenthal, 331 Ill. App. 3d at 920 n. 2), because the
culpable act defined by the statute is the defendant’s
belief that he was speaking to a minor. Ruppenthal, 331
Ill. App. 3d at 920. Accordingly, in reading the language
in the count and the statute together, we determine that
the indictment’s reference to a “child he believed to be
under the age of 17,” rather than “one whom he believed to
be a child,” was not material.
In addition, any variance was not of such a character that
it misled defendant in preparing his defense. Although
defendant makes a general claim that he was prejudiced in
preparing his defense, he does not explain how he was
prejudiced, and we find no evidence to support his claim.
At the time of his arrest, defendant was informed that his
Internet communications had been with Pleasant, rather than
an actual teenage girl. Further, during discovery,
defendant was provided with Pleasant’s reports, which
detailed the communications between defendant and Pleasant,
posing as various underage girls. Defense counsel’s
arguments before and during trial indicate that defendant
was aware that the charges against him were based on his
communications with an undercover officer rather than a
child. Specifically, defendant’s defense focused on whether
he believed GirlinIL to be under the age of 17 and whether,
when he arrived at the mall, he intended to commit an act
of sexual penetration. Thus, we do not believe that the
indictment misled defendant in preparing his defense; nor
do we believe that he would have prepared his defense any
differently had the indictment tracked the actual language
of the statute.
Moreover, defendant is not exposed to the possibility of
double jeopardy. The indictment set out the charged
offense, as well as the time period during which the
offense was alleged to have occurred. If any future
prosecution were attempted, prior prosecution on the same
Page 519 facts could be proved by resort to the record. See
People v. Ramos, 316 Ill. App. 3d 18, 25 (2000).
In reaching this conclusion, we note that defendant’s
reliance on People v. Durdin, 312 Ill. App. 3d 4 (2000), is
misplaced. In Durdin, the defendant was convicted of
delivering cocaine within 1,000 feet of a school, although
the parties stipulated that the controlled substance at
issue was heroin. Durdin, 312 Ill. App. 3d at 7. The
appellate court reversed the defendant’s conviction, noting
that the State had confessed error and that the defendant
had been convicted of the wrong crime. Durdin, 312 Ill.
App. 3d at 6, 8. Unlike Durdin, defendant here was not
convicted of the wrong crime, and the State did not confess
error. Additionally, the court in Durdin noted that, in
People v. Santiago, 279 Ill. App. 3d 749 (1996), it had
affirmed an armed robbery conviction even though the
indictment and the proof at trial varied as to the victim’s
name. Despite the misidentification of the victim, the
court in Santiago held that the variance in the information
was not fatal to the conviction because the defendant did
not sustain any prejudice, the mistake did not affect his
defense, and double jeopardy prevented the defendant from
being subjected to a second trial. Santiago, 279 Ill. App.
3d at 753. We reach the same result here; any variance in
the indictment and the proof at trial does not warrant the
reversal of defendant’s convictions.
Defendant’s final argument on appeal is that section 11-6
is facially overbroad because it reaches speech protected
by the first amendment. According to defendant, the statute
not only prohibits adults from soliciting children, but it
also proscribes role-playing, which is lawful between
consenting adults. Because “perfectly legal activity is
swept into the activity proscribed” by the statute,
defendant concludes that it results in an unnecessary
chilling of the free-speech rights of adults.
Generally, a party does not have standing to assert the
rights of others not before the court; however, the
overbreadth doctrine is an exception to the general rule.
City of Harvard v. Gaut, 277 Ill. App. 3d 1, 5 (1996). The
potential chilling effect on the protected activities of
others allows a defendant who is prosecuted for speech or
expressive conduct to challenge a law on its face, even if
his activities are not protected by the first amendment.
City of Harvard, 277 Ill. App. 3d at 5-6.
A statute is presumed constitutional, and we must resolve
any doubt in favor of the statute. People v. Hill, 333 Ill.
App. 3d 783, 785 (2002). Our review is de novo. Hill, 333
Ill. App. 3d at 785. In determining whether a statute is
overbroad, the overbreadth must be substantial before a
statute regulating conduct will be invalidated on Page 520
its face. People v. Smith, 347 Ill. App. 3d 446, 449 (2004).
A statute regulating conduct is overbroad if it: (1)
criminalizes a substantial amount of protected behavior,
relative to the law’s plainly legitimate sweep; and (2) is
not susceptible to a limiting construction that avoids
constitutional problems. Hill, 333 Ill. App. 3d at 786. Our
first task is to determine whether the statute reaches
constitutionally protected conduct. People v. Bailey, 167
Ill. 2d 210, 226 (1995).
Our research reveals two Illinois cases that have addressed
first amendment challenges to section 11-6. In Ruppenthal,
331 Ill. App. 3d at 920, the defendant communicated over the
Internet with a detective posing as “Stacy,” a 14-year-old
girl, and then traveled to an airport to meet her in order
to “rub her chest and vagina.” The court considered whether
the substance of the defendant’s online conversation with
Stacy was protected by the first amendment. In rejecting
the defendant’s claim, the court held that the element of
criminal intent “`transforms mere recitation of “loose”
words which may mandate first amendment protection into the
offense of solicitation.'” Ruppenthal, 331 Ill. App. 3d at
920, quoting People v. Lewis, 84 Ill. App. 3d 556, 561
(1980). Noting that it would be impossible for the act of
solicitation to occur without the exchange of words between
the offender and the victim, the court concluded that the
defendant’s discussions with “children or those he
believe[d] to be children” regarding sexual activity did
not rise to the level of constitutionally protected speech.
Ruppenthal, 331 Ill. App. 3d at 920. In other words,
“`[w]here speech is an integral part of unlawful conduct,
it has no constitutional protection.'” Bailey, 167 Ill. 2d
at 227, quoting Chicago Real Estate Board v. City of
Chicago, 36 Ill. 2d 530, 552-53 (1967).
More recently, in Smith, 347 Ill. App. 3d 446, the
Appellate Court, Third District, specifically held that
section 11-6 is not unconstitutionally overbroad and thus
does not infringe on the first amendment right to freedom
of speech. There, the defendant communicated over the
Internet with a detective he believed to a 15-year-old boy,
and the two agreed to meet at a store for the purpose of
engaging in oral sex. Smith, 347 Ill. App. 3d at 448. On
appeal, the defendant did not challenge the statute as
applied to him, but argued that a person age 17 or older
would be engaging in constitutionally protected speech if he
or she asked a 16-year-old spouse for an act of sexual
penetration, yet that person could be prosecuted for
indecent solicitation of a child because there is no
exception for married people. Smith, 347 Ill. App. 3d at
449. The court rejected the defendant’s claim, holding that
the legitimate goal of the statute far surpassed any
potential unlawful applications. Smith, 347 Ill. App. 3d at
450. Recognizing that the prevention of sexual exploitation
and abuse of children constitutes a government Page 521
objective of surpassing importance, the court concluded that
the occasions upon which the State would seek to enforce
the statute with regard to the hypothetical presented by
the defendant would be exceedingly rare. Smith, 347 Ill.
App. 3d at 450. Further, the court reasoned that courts
could consider the constitutionality of the statute as
applied to a married couple on a case-by-case basis and that
any flaw in section 11-6 of the Code was not of substantial
concern when viewed in the context of the statute as a
whole. Smith, 347 Ill. App. 3d at 450.
Here, defendant relies on Ashcroft v. Free Speech
Coalition, 535 U.S. 234, 152 L. Ed. 2d 403, 122 S. Ct. 1389
(2002), to support his argument that section 11-6 is
overbroad. According to defendant, section 11-6
unnecessarily bars speech (in the form of role-playing)
between consenting adults that is protected by the first
amendment. Defendant contends that he was “within his
rights under the first amendment to engage in speech with
another adult, including an adult person who may parade as
a child in an adult chat room.” Additionally, he asserts
that the link between adult chat room conversations
concerning adult-child sexual activity and actual
solicitation of a child is “contingent and indirect.”
Defendant argues that section 11-6 goes well beyond
prohibiting illegal conduct, by restricting the speech
available to law-abiding adults. We disagree.
In Ashcroft, the Court declared unconstitutionally
overbroad two provisions of the Child Pornography
Prevention Act of 1996 (CPPA) ( 18 U.S.C. § 2251, et
seq. (2000)), which extended the federal prohibition
against child pornography to sexually explicit images that
appeared to depict minors but were produced without using
real children. Ashcroft, 535 U.S. at 239-40, 152 L. Ed. 2d
at 414, 122 S. Ct. at 1396. The statute prohibited, in
specific circumstances, possessing or distributing these
images, sometimes called “virtual child pornography,” which
may be created by using adults who look like minors, or by
using computer imaging. Ashcroft, 535 U.S. at 239-41, 152
L. Ed. 2d at 414-15, 122 S. Ct. at 1396-97. In contrast to
New York v. Ferber, 458 U.S. 747, 73 L. Ed. 2d 1113, 102 S.
Ct. 3348 (1982), which upheld a prohibition on the
distribution, sale, and production of child pornography
because those acts were “intrinsically related” to the
sexual abuse of children, the Ashcroft Court determined
that the CPPA prohibited speech that recorded no crime and
created no victims. Ashcroft, 535 U.S. at 249-50, 152 L.
Ed. 2d at 420-21, 122 S. Ct. at 1401-02. Thus, virtual
child pornography was not “intrinsically related” to the
sexual abuse of children, and the harm did not necessarily
follow from the speech, but depended upon some
“unquantified potential for subsequent criminal acts.”
Ashcroft, 535 U.S. at 250, 152 L. Ed. 2d at 421, 122 S. Ct.
at 1402. Page 522
Contrary to defendant’s assertion, Ashcroft is inapposite
to the case at bar. Ashcroft did not involve a challenge to
a statute that prohibited speech used to lure a minor to
engage in sexual acts. In fact, the Ashcroft Court
specifically noted that the case involved “no attempt,
incitement, solicitation, or conspiracy.” Ashcroft, 535 U.S.
at 253, 152 L. Ed. 2d at 423, 122 S. Ct. at 1403. There,
the government argued that the CPPA was necessary because
pedophiles may use virtual child pornography to seduce
children. The Court rejected that argument, explicitly
stating that, although the government “may enforce criminal
penalties for unlawful solicitation,” the “evil in question
depends upon the actor’s unlawful conduct, conduct defined
as criminal quite apart from any link to the speech in
question.” Ashcroft, 535 U.S. at 252, 152 L. Ed. 2d at 422,
122 S. Ct. at 1402-03. The Court also rejected the argument
that virtual child pornography whets the appetites of
pedophiles and encourages them to engage in illegal
conduct, since the case involved no solicitation and the
government had shown no more than a remote connection
between the speech and any resulting child abuse. Ashcroft,
535 U.S. at 253, 152 L. Ed. 2d at 422-23, 122 S. Ct. at
1403.
Recognizing the vital distinction between words and deeds,
the Ashcroft Court clearly stated that the government may
suppress speech that “`is directed to inciting or producing
imminent lawless action and is likely to incite or produce
such action.'” Ashcroft, 535 U.S. at 253, 152 L. Ed. 2d at
423, 122 S. Ct. at 1403, quoting Brandenburg v. Ohio, 395
U.S. 444, 447, 23 L. Ed. 2d 430, 434, 89 S. Ct. 1827, 1829
(1969). Section 11-6 clearly prohibits speech that solicits
minors to engage in sexual activity with adults. According
to the statute, a person commits the offense of indecent
solicitation of a child if the person knowingly solicits a
child, or one whom he or she believes to be a child, to
perform an act of sexual penetration or conduct (720 ILCS
5/11-6(a) (West 2002)). Consequently, we disagree that
Ashcroft mandates the result urged by defendant.
Defendant asserts that few adults will risk “role-playing”
on the Internet due to the “uncertain reach” of the
statute. However, the statute applies only to those who
“knowingly” target minors for the purpose of illegal
conduct. Moreover, we note that defendant was not convicted
based upon the contents of his conversations with GirlinIL.
As the court in Ruppenthal noted, “hundreds of similarly
inappropriate exchanges undoubtedly take place every day on
the Internet. Those discussions, although disturbing, are
not illegal if not acted upon.” Ruppenthal, 331 Ill. App.
3d at 921. Defendant here demonstrated his intent to commit
illegal sexual acts by traveling to the mall to meet
GirlinIL. Page 523
Defendant further contends that setting up a meeting, as
well as the meeting itself, constitutes legal activity
among adults in the “adult role-playing environ.” We reject
this argument on the basis that neither role-playing
between adults nor meetings between adults are prohibited
by the statute. As we have stated, a person cannot be
prosecuted under the statute unless he or she actually
believes that he or she is soliciting a minor, as was the
case here. See Ruppenthal, 331 Ill. App. 3d at 920 (the
element of criminal intent transforms speech that may be
protected by the first amendment into the offense of
solicitation). Rather than prohibiting speech about sex in
general, or even communications concerning sex between
adults and minors, the statute prohibits only speech that
solicits a child, or one believed to be a child, to engage
in illegal sexual activity with an adult.
While defendant is correct that the statute applies to
speech between an adult and a law enforcement officer who
poses as a minor, the statute requires that the accused
“believe” that the person solicited be under 17 years of
age. Accordingly, the fact that defendant’s words were
transmitted to an adult does not negate his belief that he
was speaking to a minor, which is part of the culpable act
defined by the statute. See Ruppenthal, 331 Ill. App. 3d at
920. Moreover, we note that other states considering
comparable luring statutes have reached the same
conclusion. For instance, in State v. Backlund, 672 N.W.2d
431, 438-42 (N.D. 2003), the court rejected the defendant’s
claim that the North Dakota luring statute was
unconstitutionally overbroad under Ashcroft because his
communications were to a “virtual minor,” or a police
officer posing as a minor. Citing Ruppenthal, the court
stated that “[m]erely because [his] communications were
transmitted to an adult does not negate his belief he was
communicating with a minor, which is an aspect of the
culpability defined by the statute.” Backlund, 672 N.W.2d at
442. Likewise, in State v. Snyder, 155 Ohio App. 3d 453,
466, 801 N.E.2d 876, 886 (2003), the court rejected the
defendant’s argument that the Ohio luring statute had a
“chilling effect” on speech because it applied to speech
between an adult and a law enforcement officer posing as a
minor. The Snyder court concluded that the statute was not
overbroad and did not infringe on first amendment rights
because the offender would have to believe that he is
soliciting a minor for sexual activity, a criminal act,
before his conduct would fall under the statute. Snyder,
155 Ohio App. 3d at 466, 801 N.E.2d at 886. Finally, in
People v. Hsu, 82 Cal. App. 4th 976, 989, 99 Cal. Rptr. 2d
184, 194 (2000), the court noted that the only chilling
effect of the California luring statute is on the conduct
of those who would use otherwise protected speech to seduce
minors. For all of these reasons, defendant’s first
amendment challenge to section 11-6 must fail. Page 524
For the aforementioned reasons, we affirm the judgment of
the circuit court of Lake County.
Affirmed.
O’MALLEY, P.J., and KAPALA, J., concur.