People v. Gaciarz

Decision Date19 December 2017
Docket NumberNo. 2–16–1102,2–16–1102
Citation2017 IL App (2d) 161102,98 N.E.3d 406
Parties The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Marek P. GACIARZ, Defendant–Appellant.
CourtUnited States Appellate Court of Illinois

Terry A. Ekl, Vincent C. Mancini, and Kevin A. Halverson, of Ekl, Williams & Provenzale, LLC, of Lisle, for appellant.

Joseph H. McMahon, State's Attorney, of St. Charles (Patrick Delfino, Lawrence M. Bauer, and Sally A. Swiss, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

OPINION

JUSTICE HUTCHINSON delivered the judgment of the court, with opinion.

¶ 1 Following a bench trial, defendant, Marek P. Gaciarz, was convicted of involuntary sexual servitude of a minor ( 720 ILCS 5/10–9(c) (West 2014)), traveling to meet a minor ( 720 ILCS 5/11–26(a) (West 2014)), and grooming ( 720 ILCS 5/11–25(a) (West 2014)). The State's evidence established that defendant responded via text messages to an online advertisement for a female prostitute. The advertisement made no mention of a minor. An officer from the Aurora police department placed the advertisement as part of an undercover sting operation conducted with the assistance of special agents from the United States Department of Homeland Security. Defendant was arrested inside a hotel room after he exchanged money with a special agent. The State argued that defendant's intent to have sex with a minor was established through his exchange of text messages in response to the advertisement. Defendant maintained that he intended to have sex with an adult and that he did not understand the references in the text messages to mean that he would be meeting with a minor. On appeal, defendant contends that: (1) the evidence was insufficient to prove him guilty beyond a reasonable doubt; (2) the trial court erroneously allowed an incomplete video recording to be admitted into evidence; and (3) his trial counsel provided ineffective assistance by failing to inspect the video-recording equipment. We affirm.

¶ 2 I. BACKGROUND

¶ 3 Many of the facts in this case are undisputed. On January 8, 2015, defendant responded via text messages to the phone number listed in an advertisement for a female prostitute on the website "back page.com." The advertisement was titled: "young warm and ready :) –18." It featured a picture of a brunette female wearing cut-off jean shorts and a midriff-baring shirt. The female's face could not be seen. The advertisement read as follows:

"its ssooooooo cold outside, come warm up with a hot little co
ed. Im young, eager to please and more than willing to meet all
your desires. come keep me warm and I promise to return the
favor:0:):) ask about my two for one special
text me at [xxx-xxx-xxxx]..
100 donation for hh
150 donation full hour
Poster's age: 18"

¶ 4 In responding to the advertisement, defendant unknowingly exchanged a series of text messages with Aurora police officer Erik Swastek. The pertinent text messages read as follows:

"Defendant: Hey how you doing
Swastek: hey sweetie
Defendant: I like your ad do you have more pic
Swastek: sorry baby, I don't send pics, too risky cause of mygirls age
Defendant: Okay where you guys live
Swastek: what are u looking for
Defendant: I would like to spend 1 h
Swastek: ok its 150 for the hour, which girl u want, i got a 14 yo blnd and 15 yo brunette
Defendant: Brunette
Swastek: ok baby, what do u want for the hour
Defendant: Kisses and bj
Swastek: ok, you have to wear a condom for oral, I don't want my daughter catching anything
Swastek: is that cool
Defendant: Okay no problem am young and I wanna be safe too"

In the text messages that followed, Swastek gave defendant the address for an Aurora hotel. When defendant arrived at the designated room, he was to knock on the door and say a specific phrase. (We have omitted any further details for fear of compromising future operations.)

¶ 5 Inside the hotel room, Special Agent Melissa Siffermann assumed the role of the "mother" who had exchanged the text messages with defendant. Special Agent Geoffrey Howard monitored the interaction from an adjoining room, using video-recording equipment. Howard had placed cameras inside Siffermann's room and in the hallway that led to Siffermann's room. During discovery, it was revealed that the video recording from inside Siffermann's room was separated into four segments with gaps of unrecorded time between the segments. The time stamps indicate that the entire recording took place between approximately 11:40 and 11:43 p.m. The following events are depicted in the four segments.

¶ 6 The first segment is approximately six seconds long. The television can be heard in the background and there is an audible knock on the hotel room door. There is a six-second gap of unrecorded time between the first and second segments.

¶ 7 The second segment is approximately 15 seconds long. Siffermann answers the door and introduces herself as "Michelle." She appears to be in the process of brushing her teeth. She exchanges pleasantries with defendant as she removes some items from a chair. She asks defendant if he would like to sit down and says that she is "sorry about the mess." There is a seven-second gap of unrecorded time between the second and third segments.

¶ 8 The third segment is approximately 13 seconds long. Siffermann is out of view, but defendant can be seen sitting on a chair. Siffermann is heard saying that she wants to "make sure everyone is good." She asks defendant, "you still want both for the hour?" Defendant pauses before asking, "[c]an I see girls?" The recording abruptly ends just as defendant makes this request. There is a 33–second gap of unrecorded time between the third and fourth segments.

¶ 9 The fourth segment is 1 minute and 18 seconds long. Defendant hands something from his pocket to Siffermann. She responds by confirming that defendant wants to purchase a "full hour." Defendant agrees and states that he brought "protection." Siffermann advises defendant that there can be "nothing rough" and "no anal." She explains that, although she will not be in the hotel room, she will be nearby. She concludes by saying, "they'll be up in a second, I'm just going to finish brushing my teeth." Siffermann enters the restroom and closes the door behind her. Seconds later, Aurora police officers enter Siffermann's room from the adjoining room and place defendant under arrest.

¶ 10 Defendant filed a pretrial motion in limine to exclude the entire hotel-room recording on the basis that it was unreliable. Defendant argued that the 33–second gap of unrecorded time between the third and fourth segments was particularly problematic, as that was the "most important portion" of his conversation with Siffermann. In its written response, the State argued that Siffermann had provided a written report of what happened during the 33–second gap and that she would be subject to cross-examination regarding the contents of her written report.

¶ 11 At the hearing on defendant's motion in limine , Howard testified that the Department of Homeland Security and the Aurora police department had been conducting joint operations aimed at luring individuals "who might be interested in having commercial sex with underage people or people who are being trafficked." Howard was the special agent in charge of three such joint operations. Defendant was arrested during the third operation. Howard testified that, for each operation, he set up the video-recording equipment and monitored a live feed from the adjoining hotel room. On the night in question, one other "target" had been arrested before defendant arrived at the hotel room. Howard deactivated the recording equipment following the first arrest, then he reactivated the equipment when he learned of defendant's impending arrival. When the operation concluded, Howard gathered the equipment and gave it to Homeland Security technical operations staff. The recording was then placed on a compact disc. Howard made copies of the disc for the Kane County State's Attorney and the Aurora police department. As he was making the copies, Howard observed that the hallway recording was in one continuous segment but the hotel-room recording was broken into four "chopped-up" segments. He recalled from past operations that recordings had been broken into two segments, but he had never seen a recording broken into four segments. Howard testified that he did not stop the recording when defendant was inside the hotel room, nor did he see anyone stop the recording. He added that the technical operations staff could not explain the breaks in the recording. Howard admitted that there were no such issues with the recording of the first target's arrest. He also admitted that the same recording equipment had malfunctioned during a subsequent operation, "where it didn't record anything at all."

¶ 12 On cross-examination, defense counsel inquired as to the type of camera that was used. Howard would not disclose that type of "tradecraft," for fear of compromising future operations. When defense counsel pressed the issue, the State objected on grounds of relevance. The trial court ruled that the type of camera used was irrelevant but that defense counsel could explore the method of recording, i.e. , whether it was wireless or digital. Thereafter, the following exchange took place between defense counsel and the trial court:

"MR. PISSETZKY [ (defense counsel) ]: Your Honor, I appreciate it. I think, as for [defendant], I have the right to ask [sic ] the camera to be brought and for me to inspect it if there's an indication that it was not working properly.
THE COURT: Well, that's not the motion you filed.
MR. PISSETZKY: Right. Okay.
THE COURT: If you want a motion to inspect the camera, I'm four days before trial and I don't have a motion to inspect the camera—
MR. PISSETZKY: Okay.
THE COURT:—before me. So if you thought you had a right to it, I would have filed that motion a long time ago.
MR. PISSETZKY: Okay.
THE COURT: You filed a
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2 cases
  • People v. Ziemba
    • United States
    • United States Appellate Court of Illinois
    • March 23, 2018
    ...of first impression, this court recently considered and rejected the argument now raised by defendant. See People v. Gaciarz , 2017 IL App (2d) 161102, 420 Ill.Dec. 789, 98 N.E.3d 406. Gaciarz involved the same undercover operation run by the Aurora Police Department, and the defendant was ......
  • People v. Torres
    • United States
    • United States Appellate Court of Illinois
    • November 15, 2021
    ...and [a] bj,’ " were enough alone to find the defendant guilty of various offenses involving sexual acts with a minor. See People v. Gaciarz , 2017 IL App (2d) 161102, ¶¶ 3-4, 44, 420 Ill.Dec. 789, 98 N.E.3d stated, we affirm the judgment of the circuit court of Lake County.¶ 32 Affirmed.Jus......

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