Appeal from the Circuit Court of Lake County No. 98--CF--1877 Honorable Christopher C. Starck, Judge, Presiding.
The opinion of the court was delivered by: Justice Geiger
The defendant appeals from the February 23, 1999, order of the circuit court of Lake County finding him guilty of attempted predatory criminal sexual assault of a child (720 ILCS 5/8--4(a), 12--14.1(a)(1) (West 1998)), attempted aggravated criminal sexual abuse (720 ILCS 5/8-- 4(a), 12--16(c)(1)(i) (West 1998)), and two counts of attempted indecent solicitation of a child (720 ILCS 5/8--4(a), 11--6 (West 1998)) and sentencing him to 12 years' incarceration. On appeal, the defendant argues that (1) the trial court erred in denying his motion to suppress statements; (2) the State did not prove him guilty beyond a reasonable doubt of attempted predatory criminal sexual assault; (3) the State did not prove him guilty beyond a reasonable doubt of attempted indecent solicitation of a child; (4) the trial court erred in considering in sentencing a prior conviction that has since been vacated; (5) his sentence was excessive; and (6) the concurrent sentence of 365 days' imprisonment for indecent solicitation of a child was beyond the maximum allowed for a misdemeanor charge.
The charges against the defendant arose from his communications with an undercover Lake County sheriff's detective, Richard White, who met the defendant on the Internet. At the bench trial, Detective White testified that, on July 13, 1998, he was conducting an investigation on the Internet service provider America Online. Detective White used the screen name "XradboyX," the profile of which indicated that the user was named "Ricky" and was born on December 12, 1986. On July 13, 1998, Detective White was in a chat room when he received an instant message from the defendant, who was using the screen name "FarWestBoy." The defendant asked Ricky/XradboyX how old he was. An Internet instant message conversation then ensued, during which Detective White represented that he was 12 years old, and the defendant indicated that he was 34.
The conversation included references to sexual behaviors. Detective White and the defendant agreed to meet later that day at a Denny's restaurant. At the appointed time, Detective White appeared at the location, but the defendant did not.
Detective White testified that, the following day, he received two e-mails from the defendant. In those e-mails, the defendant apologized for not attending the meeting and expressed his desire to continue the exchange of messages. When Detective White logged on to America Online, he received an instant message from the defendant. They engaged in a sexually suggestive computer dialogue for about one hour. During that conversation, Detective White requested that the defendant send him pictures via e-mail of men engaged in sexual conduct. The defendant complied with his request and forwarded images of two young males engaged in acts of sexual penetration. Detective White and the defendant again agreed to meet at the Denny's restaurant.
At the agreed-upon time on July 15, 1998, Lake County detectives arrived at the location. After the defendant arrived, he approached Detective Manis who had been dressed to attempt to match the description of a 12-year-old boy that Detective White had conveyed to the defendant. The defendant asked Detective Manis if he was Ricky. After Detective Manis responded in the affirmative, the defendant stated, "[Y]ou don't look like you're twelve years old." Police officers then arrested the defendant.
Following his arrest, the defendant was taken to the sheriff's department, where he gave oral and written statements to investigators. During the interview, the defendant identified himself as FarWestBoy and admitted his understanding that Ricky/XradboyX was 12 years old. He confirmed that he had driven to the Denny's restaurant to meet Ricky/XradboyX, and that he would have had sex if Ricky/XradboyX had wanted to.
The defendant presented no evidence at the bench trial and moved for a directed verdict. The trial court found the defendant guilty of attempted predatory criminal sexual assault of a child, attempted criminal sexual abuse, and two counts of attempted indecent solicitation of a child. The trial court denied the defendant's posttrial motions.
At sentencing on February 23, 1999, the defendant called Reverend Paul C. Meyers in mitigation. Rev. Meyers testified that he had known the defendant for 16 years and that the defendant was a caring and sensitive person and a committed member of his family. The defendant's brother, Jonathon Scott, also testified that the defendant was a compassionate person who receives the support of his family.
The trial court sentenced the defendant to 12 years' imprisonment for attempted predatory criminal sexual assault of a child and vacated the judgment on the charge of attempted aggravated criminal sexual abuse. The trial court also sentenced the defendant to concurrent terms of 365 days' imprisonment on each of the two charges of attempted indecent solicitation of a child.
We first consider the defendant's argument that the trial court's denial of his motion to suppress was manifestly erroneous. The defendant asserts that the police improperly took his statements after he invoked his right to have an attorney present during questioning. In addition, the defendant complains that the trial court considered in impeachment a prior conviction of child pornography, which has since been vacated. According to the defendant, we should disregard the trial court's finding that the testimony from police was more credible because of the trial court's finding that the defendant had been impeached for purposes of the motion hearing.
Under Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966), once a suspect invokes his right to the presence of counsel during interrogation, all questioning must cease until counsel is actually present, unless the suspect initiates further communication. Edwards v. Arizona, 451 U.S. 477, 485, 68 L. Ed. 2d 378, 386-87, 101 S. Ct. 1880, 1885 (1981). If police continue questioning a suspect after he invokes his right to counsel, any statements made by the defendant may be suppressed. See Edwards, 451 U.S. at 487, 68 L. Ed. 2d at 387- 88, 101 S. Ct. at 1886. A trial court's decision regarding a motion to suppress statements will not be disturbed unless it is manifestly erroneous. People v. Wheeler, 281 Ill. App. 3d 447, 454 (1996).
Detective White testified during the hearing on the motion to suppress that he read the Miranda rights to the defendant from a department form and asked the defendant to place his initials next to each paragraph. When Detective White read the portion of the form pertaining to a waiver of rights, the defendant at first would not initial the form and asked some questions of Detective Lawrence Oliver, who was also questioning the defendant. At that time, Detective White left the room and Sergeant Kadlec entered the room. When Detective White returned hours later, the defendant had signed the waiver portion of the form. Although Detective White did not witness the defendant signing the form, his signature nevertheless appears as a witness to the defendant's signature. This testimony contradicted the police report in which Detective White had reported that he had actually seen the defendant signing the form. Detective White also testified that he had signed the form prior to the time that the defendant signed it and that the defendant did not request to speak to an attorney while he was present in the interview room.
The defendant testified for the purpose of the motion to suppress statements. The defendant testified that he did not agree to sign the waiver portion of the rights form because he had asked for an attorney, and the waiver contradicted his request. The defendant told Detective White four or five times that he wanted an attorney present before being interviewed. After Detective White left the room, Detective Oliver told the defendant that it would look better if the defendant made a statement and that the police would attempt to secure help for the defendant. About one hour ...