People v. Vara

• Decision Date: 21 December 2016
• Docket Number: No. 2-14-0849,2-14-0849
• Citation: 68 N.E.3d 1018,2016 IL App (2d) 140849
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Ricardo VARA, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

2016 IL App (2d) 140849

68 N.E.3d 1018

The PEOPLE of the State of Illinois, Plaintiff-Appellee,

v.Ricardo VARA, Defendant-Appellant.

No. 2-14-0849

Appellate Court of Illinois, Second District.

Opinion filed December 21, 2016

Michael J. Pelletier, Thomas A. Lilien, and Jaime L. Montgomery, of State Appellate Defender's Office, of Elgin, for appellant.

Carl H. Larson, State's Attorney, of Freeport (Lawrence M. Bauer and Marshall M. Stevens, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

OPINION

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

¶ 1 This case presents a matter of statutory construction. Defendant, Ricardo Vara, was convicted of grooming pursuant to section 11-25 of the Criminal Code of 2012 (Code) (720 ILCS 5/11-25 (West 2012) ), in that he sent a text message to J.D., an 11-year-old girl, stating that he wanted to make love to her "pink hot pussy." On appeal, defendant argues solely that, to be convicted of grooming, section 11-25 required that he enticed J.D. in order that J.D. commit a sex offense. Because we interpret the statute as requiring that defendant enticed J.D. to engage in sexual conduct with defendant—in order that defendant could commit a sex offense—we affirm.

¶ 2 I. BACKGROUND

¶ 3 Defendant was charged with one count of grooming pursuant to section 11-25 of the Code (the grooming statute). Id. The State alleged that on or about January 14, 2013, defendant:

"knowingly used a * * * cellular device to entice J.D. a child, to commit the offense of Predatory Criminal Sexual Assault of a Child, in violation of 720 ILCS 5/11-1.40, in that he sent a text message to J.D.'s phone stating that he wanted to make love to ‘ur pink hot pussy’."

¶ 4 On May 13, 2014, defendant waived his right to a jury trial, and the case proceeded to a stipulated bench trial. The State provided the following evidence, and defense counsel agreed that the State's witnesses, if called, would testify in substantially the same manner. First, Freeport police officer Coplien would testify as follows. On February 5, 2013, Coplien responded to a complaint of explicit text messages sent to J.D. Upon arriving at the complainant's home, Coplien saw defendant standing outside. Defendant's date of birth was August 14, 1955. Coplien spoke with defendant, and defendant told him that he had made a mistake by sending a text message to the wrong person.

¶ 5 Coplien then went inside and spoke to J.D.'s parents. Nicole M. was J.D.'s mother. Nicole told Coplien that J.D. had shown Nicole her cellular phone. J.D. had received text messages that upset her. It was later determined that the text messages came from defendant's phone number. Nicole gave Coplien J.D.'s phone.

¶ 6 One of the text messages on JD.'s phone read, verbatim: "I'w say yes jazzy I wih I was thar making love to ur pink hot pussy Come- On jazz.u now u got to cl I'w be work win u cl.But cl after, 430. &Beeztw8 9.I'wse". The message was sent from defendant's phone number on January 14, 2013. J.D. replied with several text messages to defendant, sending the following on January 23, 2013: "Why do u keep sending me dirty messages," "Can u answer that," and "why do u want me to call." The messages were signed "YOLO:) loljazzymarieboo".

¶ 7 Nicole told Coplien that she confronted defendant about the messages sent to J.D.'s phone. Defendant claimed that he sent the messages by accident.

¶ 8 Coplien returned to defendant and asked to see his phone. Defendant allowed him to look at his text messages but did not allow him to handle his phone. Instead, defendant scrolled through the messages while Coplien observed. Based on his observations, including observing that the phone number on defendant's phone matched the phone number for the messages sent to J.D.'s phone, he arrested defendant and seized his phone. He placed defendant's and J.D.'s phones in the Freeport police department's evidence vault.

¶ 9 J.D. would testify as follows. She was 12 years old at the time of trial and 11 years old when she received defendant's text message from January 14, 2013. Defendant had been living with her and her family for a period of time, and he paid rent to her parents. Sometimes, defendant took her shopping and bought her gifts. He gave her a cell phone, paid the bill on the cell phone, and gave her a tablet computer. They spoke often. Defendant wanted J.D. to call and text him frequently. He was 57 years old when he sent her the text message in this case.

¶ 10 J.D. would identify the text message defendant sent to her cellular phone. She also would confirm the text messages that she sent to defendant. Defendant referred to her in his text message as "Jazzy" or "Jazz."

¶ 11 Next, defense counsel presented defendant's testimony, and the State agreed that defendant would testify as follows. Defendant had sent his text message to J.D. in error. The message was intended for two other individuals, Felicia C. and Jennifer D. He explained this to Coplien when they spoke on February 5, 2013.

¶ 12 Further, defendant would explain that some of the text messages on his phone were taken out of context and that some of the messages were intended for J.D.'s family in general, not specifically for J.D. He and the family had "a falling out" over some financial issues. Some money had been "misplaced." He would argue that money was the motivation behind this incident.

¶ 13 After the presentation of the stipulated evidence, the State argued that defendant knowingly used his cellular phone to entice J.D. in order to commit predatory criminal sexual assault of a child, in that his words proposed or encouraged coitus between J.D. and himself. Defense counsel responded in part by asking the court to rule whether the grooming statute reasonably placed defendant on notice of the offense charged.

¶ 14 The court found defendant guilty of grooming beyond a reasonable doubt. The court reasoned as follows. When the alleged offense occurred, J.D. was under the age of 13 and defendant was over the age of 18. The "single most damning piece of evidence" against defendant was the text message itself, which the court understood as intended for J.D.

¶ 15 Defendant moved for a new trial. He argued in part that the evidence did not establish his mental state, that is, that he sent the message to seduce, solicit, lure, or entice, or attempt to seduce, solicit, lure, or entice, J.D. to commit any sex offense. Defendant also moved to vacate his conviction, arguing that the State failed to present evidence necessary to establish the essential elements of the offense of grooming.

¶ 16 At a hearing on the motion to vacate the conviction, defense counsel argued that it was impossible for defendant to have committed the crime as delineated by the grooming statute. The statute required that a defendant entice a child to commit a sex offense. In particular, counsel argued, in this case, the statute required that the child was enticed to commit the crime of predatory criminal sexual assault of a child, making the child both the victim and the perpetrator. The court denied the motion to vacate the conviction.

¶ 17 At the hearing on the motion for a new trial, defense counsel again raised the issue of the statute's wording, describing it as a "poorly written statute" that was "very vague," because "asking a child to commit the crime would be an impossible thing." The State disagreed that the statute required that the child was enticed to commit any offense or that the wording of the statute was unconstitutionally vague. The court denied the motion, reasoning that the statute had survived constitutional challenges in the past.

¶ 18 Following a sentencing hearing, the court sentenced defendant to 24 months' imprisonment.

¶ 19 Defendant timely appealed.

20 II. ANALYSIS

¶ 21 Defendant argues that the State did not prove an essential element of the offense of grooming, because it would be legally impossible for J.D. to commit a predatory criminal sexual assault, which the statute required that she be enticed to commit. Defendant does not contest the trial court's findings. Rather, his argument is based entirely on statutory construction. Questions of statutory construction are questions of law, which we review de novo . People v. Gutman , 2011 IL 110338, ¶ 12, 355 Ill.Dec. 207, 959 N.E.2d 621.

¶ 22 Defendant argues that section 11-25(a) of the Code required that J.D. personally was enticed to commit the offense of predatory criminal sexual assault. He first notes that the legislature did not define the terms "seduce, solicit, lure, or entice" in section 11-25 of the Code. However, the Code generally defines "solicit" in section 2-20 (720 ILCS 5/2-20 (West 2012) ) as follows: " ‘Solicit’ or ‘solicitation’ means to command, authorize, urge, incite, request, or advise another to commit an offense." Unless the particular context of section 11-25 requires a different meaning for "solicit," we should ascribe the definition provided in section 2-20.

¶ 23 Defendant continues that section 11-25 does not define the terms "seduce," "entice," or "lure" and that therefore we must look to their popularly understood meanings. Citing the Merriam-Webster dictionary, defendant asserts that "seduce" means to persuade someone to do something, particularly to have sex. To "lure" is defined as to cause or persuade someone to go somewhere or do something by offering some pleasure or gain. And finally, "entice," when taken as a transitive verb, means to attract artfully or adroitly or by arousing hope or desire.

¶ 24 Defendant emphasizes that all of these terms, along with section 2-20's definition of solicit, "have a common theme of persuading someone to do something ." (Emphases in original.) Therefore, the plain language of the statute required that, in order for him to have committed grooming, he must have persuaded or attempted to persuade J.D. to commit a sex offense. Defendant also invokes the rule of lenity, in that an ambiguous criminal...