Appeal from the Circuit Court of Lake County. No. 02-CF-842. Honorable Christopher C. Starck, Judge, Presiding.
The opinion of the court was delivered by: Justice Bowman
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 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 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.
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 ...