People v. DeBartolo

• Decision Date: 05 March 1993
• Docket Number: No. 2-91-0410,2-91-0410
• Citation: 242 Ill.App.3d 811,610 N.E.2d 131,182 Ill.Dec. 707
• Parties: , 182 Ill.Dec. 707 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Robert G. DeBARTOLO, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 131

610 N.E.2d 131

242 Ill.App.3d 811, 182 Ill.Dec. 707

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Robert G. DeBARTOLO, Defendant-Appellant.

No. 2-91-0410.

Appellate Court of Illinois,

Second District.

March 5, 1993.

Patrick A. Tuite, Ronald D. Menaker, Law Offices of Patrick A. Tuite, Ltd., Chicago, for Robert G. DeBartolo.

James E. Ryan, DuPage County State's Atty., Wheaton, William L. Browers, Deputy Director, Marshall Stevens, State's Attys. Appellate Prosecutor, Elgin, for the People.

Justice McLAREN delivered the opinion of the court:

On November 12, 1990, defendant, Robert G. DeBartolo, was charged with prostitution for agreeing to perform an act of lewd fondling upon an undercover police officer for the sum of $50 on August 9, 1990. The offense is initially treated as a Class A misdemeanor. (See Ill.Rev.Stat.1989, ch. 38, pars. 11-14.) Following a bench trial, the trial court found defendant guilty, sentenced him to two years' probation subject to 30 days' confinement in the county jail at the end of the probation period, and fined him $500. Defendant's post-trial motion was denied on April 11, 1991, and this timely appeal followed.

We affirm the judgment of the circuit court.

On appeal, defendant argues that (1) it was error for the trial court to deny his motion for a directed finding at the close of the State's case because the State failed to prove beyond a reasonable doubt that defendant agreed to perform a sexual act upon another for money; and (2), alternatively, the evidence was insufficient for the court to find him guilty of prostitution beyond a reasonable doubt as to these same elements of the offense.

At trial, Officer Judith Zydowski of the Chicago police department testified for the State. She had been in law enforcement for 18 years and for the past four years assigned to the vice control section of her division. On August 9, 1990, at 10 a.m., she responded to an advertisement in a Chicago area newspaper which stated that a massage was available for women from a man for sore, tense areas.

She called the telephone number and heard a message from an answering machine. Zydowski left a message. Approximately 20 minutes later, she received a call from a male, whose voice she believed was the same as in the message, who asked if she had called. She responded that she had seen the ad in the newspaper and was interested in getting a massage. The man told her that the massage was a full body massage which lasted an hour and cost $50 cash. Zydowski asked if he were available at 1 p.m. that afternoon, and he replied that he was. She asked him at that point if there would be any "release." Over objection, she opined, based on her experience investigating prostitution, that this term in the massage business customarily meant "masturbation." When asked what his response was, she testified: "He said, yes, sure. But he was not going to discuss it over the phone with me. And I said fine. I understood."

At approximately 1 p.m. that afternoon, with backup support, Zydowski went alone into the tanning salon at 13 West Main Street and asked the counter clerk for Gregg as she had been directed on the telephone. The clerk told her to go to the back of the facility, which had four or five tanning salon spaces, a whirlpool and a back office. In the back office, she met defendant, whom she identified in open court. She asked if he were Gregg and he said yes. She identified herself as Kelly McCormick. He first showed her the hot tub area and said she could use the hot tub before the massage. She said that area had framed pictures of people engaging in sexual intercourse. She said she was not interested in the hot tub, but was interested in the massage. He said "fine."

Zydowski told him she hoped she had not offended him by asking for "release" on the phone. He said he was concerned that she was with the police. She said she was very tense and "the only way that I could come was through masturbation." He again inquired if she were the police and stated, "Do you have a star?" She had a coin purse with her and opened it up. There was a panic button inside it which she could beep if she got into trouble. She showed it to him, and he said it was a beeper; if she were a police officer he did not want to "talk sex" with her.

Zydowski said she was not a police officer and did not want sex, but she wanted to be masturbated. He then told her to get up on the table and that they would have some fun. He stated that it would be $50 and she could pay him later. Zydowski pushed her panic alarm, but the backup officers were delayed by a train which ran through Main Street. She said she was a police officer and defendant was under arrest; he became verbally abusive. Her backup arrived along with a detective from the Bensenville police department and placed defendant under arrest.

On cross-examination, Zydowski was asked if, in response to the ad, she called this tanning salon in Bensenville, Illinois. She could not say that the telephone number was listed for the tanning salon, but, in response to the message, a return call was made by an individual with a husky voice. After ascertaining that a massage was available and would cost $50, she asked about the possibility of getting a "release." The man said he preferred not to talk about this over the telephone. He agreed that she could come over at 1 p.m. and instructed her to ask for Gregg.

During cross-examination, Zydowski agreed that she then proceeded from her office, where she was monitoring these telephone calls, to the Bensenville area. After entering the premises, it was defendant who showed her the facilities. She denied that, after telling defendant that she did not want to use the hot tub, defendant told her to get comfortable. She began to but did not take off her clothes or strip down to her brassiere and panties. Defense counsel asked her whether she said, "Will you--does this--include in this massage a release?" She replied, "No. I asked him if he would masturbate me." She acknowledged that she told defendant, "I am very tense and I would like to come, and the only way that I can come is through massage that includes masturbation." After stating his concern that she might be a police officer, defendant said, "I don't want to discuss sex with the police." She then said she was not the police and did not want sex.

Defense counsel inquired further:

"Q. Now, after DeBartolo supposedly says hop up and we will have some fun. You then said to DeBartolo, well, what is it going to cost me now, isn't that right, madam?

A. Yes.

Q. And DeBartolo said that it will cost you the same thing, 50 bucks, just like I told you before, isn't that right?

A. Yes, sir.

Q. And then DeBartolo said you can pay me later, isn't that right?

A. Yes."

Zydowski acknowledged that it was not defendant that became abusive, but it was the clerk who did so. Because of the delay in the arrival of her backup, Zydowski waited in the front of the tanning salon. Defendant asked to make a telephone call. On his return he told her that he had called the Bensenville police. She also testified that her backup also called the Bensenville police, but did not know if defendant's officer showed up before hers.

On redirect examination, Zydowski said that the voice she heard on the telephone and on the answering machine was the same as that of the person who offered to masturbate her.

The State rested. Defendant moved for a directed finding and argued essentially that there was no agreement for money as to the sexual favor because the terms of the massage were agreed to before there was any discussion of the sexual favor. Analyzing the facts in terms of contract law, the trial court was of the opinion that there was no complete agreement until both persons had agreed on the price and the services to be performed. The court did not believe that there was an agreement first and then an additional gratuitous (sexual) service was to be performed. The court believed that both on the telephone and at the tanning salon the witness requested the sexual act to be included within the massage for $50. The court denied defendant's motion.

Defendant testified that he was the owner of a restaurant and two tanning salons. One was a tanning salon called Main Street Beach in Bensenville, Illinois, which provided services including body wrap, sculptured nails, massage, hot tub and sauna. Defendant acknowledged that he advertised in the local newspapers. He received a telephone call on August 9, 1990, at 10:30 a.m. He was monitoring calls received on his answering machine on the premises. The outgoing recorded greeting on the machine was a prerecorded message, that was purchased from Radio Shack. He called back and talked to a person named Kelly. She asked if she could come in for a massage and he agreed. He told her the price was $50. She asked for directions to get to the salon and said she would be there at 1 p.m. Defendant denied that anything was said over the telephone regarding the possibility of a "release." The woman did not ask what the massage included. He told her that it was a Swedish type of body massage using nongreasy lotions.

Defendant had two employees who gave massages. One was a man and one was a woman. He told Kelly that he only had a woman that afternoon, but she wanted a man. He agreed to an appointment for her and told her to ask for Gregg. Defendant's son worked in the front and acted as manager. The rear area was equipped with tanning rooms and a hot tub room; there was a massage table on the side of the office wall. That afternoon, Gregg, his male masseur, could not be reached, so defendant was going to perform the massage himself.

Kelly was dressed in shorts and a top. After defendant showed Kelly the hot tub and said she could use it, he told her to make herself comfortable and wrap a towel around herself. She said she did not have time for the...