Modified upon denial of rehearing June 28, 2013
In a prosecution arising from text messages defendant sent to a detective posing as a 15-year-old girl, defendant’s conviction for indecent solicitation of a child was upheld over his contentions that the jury was given incomplete and misleading instructions, that his communications were constitutionally protected, and that the police induced his actions by outrageous conduct, since, inter alia, defendant failed to object or offer alternative instructions, the evidence against defendant was overwhelming, and the incorrect instructions had no effect on the verdict; however, the cause was remanded for vacation of improperly imposed fines and the imposition of mandatory fines applicable to defendant.
Appeal from the Circuit Court of Champaign County, No. 11-CF-869; the Hon. Harry E. Clem, Judge, presiding.
Michael J. Pelletier, Karen Munoz, and Colleen Morgan, all of State Appellate Defender's Office, of Springfield, for appellant.
Julia Rietz, State's Attorney, of Urbana (Patrick Delfino, Robert J. Biderman, and Kathy Shepard, all of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.
Panel JUSTICE POPE delivered the judgment of the court, with opinion. Justices Turner and Knecht concurred in the judgment and opinion.
¶ 1 In August 2011, a jury convicted defendant, Calvin Rexroad, of indecent solicitation of a child (720 ILCS 5/11-6(a) (West 2010)). The trial court sentenced defendant to eight years' imprisonment. Defendant appeals, arguing the following: (1) his conviction for indecent solicitation of a child must be reversed and the case remanded for a new trial because the jury was given incomplete and misleading jury instructions, which omitted one mental state element of the offense and misstated the other; (2) his conviction must be reversed because the State did not prove he committed a crime because (a) there was not a victim, (b) his conversation with the police officer impersonating the 15-year-old girl was constitutionally protected, and (c) his presence at the meeting place was only induced by police conduct so outrageous it violated due process; and (3) the circuit clerk improperly imposed at least one fine and failed to apply his presentence-custody credit. We affirm defendant's conviction but remand for the trial court to vacate fines improperly imposed by the circuit clerk and reimpose those fines where appropriate.
¶ 2 I. BACKGROUND
¶ 3 On May 31, 2011, the State charged defendant by information with indecent solicitation of a child (720 ILCS 5/11-6(a) (West 2010)) (count I) and solicitation to meet a child (720 ILCS 5/11-6.6(a) (West 2010)) (count II), an offense for which defendant was extended-term eligible.
¶ 4 On August 24, 2011, defendant made an oral motion in limine with regard to a lone conversation between Detective Robb Morris and defendant. According to defense counsel:
"Judge, there is a specific conversation between Detective Morris and Calvin Rexroad that's on the tape and if the Court would allow I'll just briefly read. Detective Morris asks my client, 'How old is Riley?' The Defendant states, 'Well, she told me she was 15 but on Facebook she don't say.' Detective Morris states, 'Okay.' My client states, 'Because everything is private on there.' Detective Morris states, 'All right. But you said at some point she told you she was 15.' Defendant says, 'Well she said do I have a problem with her being 15. I said yeah, you know. I didn't say yes. I didn't say no.' That's the portion I'm asking the Court to exclude."
Defendant argued the statement was hearsay. The State argued the statement was not being offered to establish the truth of the matter asserted, i.e., R.H.'s actual age. Instead, the State argued the statement would be offered to show defendant believed he was communicating with a 15 year old. The court denied defendant's motion, finding the statement fell under the state-of-mind exception to the hearsay rule.
¶ 5 At defendant's August 2011 trial, the State moved to dismiss the indecent solicitation to meet charge, which the trial court allowed. R.H. (born July 18, 1995) testified she was 15 years old when defendant sent her a Facebook message that said, "Wow, you are really so beautiful." R.H. did not respond but told her parents, who contacted the police about the message. R.H. testified she personally never sent defendant any type of communication.
¶ 6 Detective Robb Morris of the Champaign police department testified he sent messages to defendant impersonating R.H. from R.H.'s Facebook account with her permission. In response to defendant's initial message, Morris responded, "You are so sweet, thank you. I don't recognize your name, though, and my mom is freaky about stuff like that. I have an email address that she does not know about, though, if you want to use that." The message then provided that e-mail address.
¶ 7 Morris testified he had no further contact with defendant on Facebook. However, he received six e-mail messages on the e-mail account Morris created to give to defendant. The first message was sent from defendant on May 19, 2011. The message included a telephone number. Morris obtained a loaner phone from the Champaign Telephone Company and set up a phone number and account for purposes of the investigation. Morris testified he and defendant exchanged 442 text messages between the loaner phone he was using and the phone number provided in the e-mail message from defendant.
¶ 8 Morris sent the first text message to defendant on Friday, May 19, 2011. However, that message along with approximately 10 to 15 other messages were lost because the phone Morris was using did not have an "SD" card and the battery on the phone died. When he powered the phone back on, the text messages were gone. Morris resumed contact with defendant the following week. Morris did not remember the specifics of the lost messages he received. However, he testified he "had established quite quickly a number of things, including the elements of the [charged] offenses, but none of that information was retained by the phone."
¶ 9 Morris testified he, while impersonating R.H., and defendant communicated with each other between May 23 and May 27 via text message. In the text messages, Morris told defendant he was 15 and ready to have sex but nervous. In many of the text messages, Morris stated the messages were being sent from R.H.'s high school. Morris sent defendant a text message stating he knew defendant was "older, like 40 or something" and asked what defendant looked like. Defendant responded he was 6 feet 2 inches tall, with dishwater blonde hair, an average build, and baby blue eyes. Morris and defendant then exchanged messages about what R.H. and defendant would do on a date. Defendant said he would buy condoms. Defendant also stated he would perform oral sex on R.H. and described how they would have sexual intercourse. During another exchange, defendant again described performing oral sex on R.H., described how they would have sexual intercourse, and how he wanted R.H. to perform oral sex on him. In one message, defendant asked if R.H. would let him ejaculate inside her without a condom. Morris responded, "If u don't care that people find out u got a 15-year-old schl girl prego." They also discussed what R.H. would tell her mother to get out of the house. They arranged to meet at an IGA grocery store parking lot so they could go back to defendant's residence.
¶ 10 Morris testified a young lady who resembled R.H. in physical appearance but was older and working at the police department at the time impersonated R.H. for the planned meeting with defendant on Friday, May 27, 2011. Detective Morris testified he went to the parking lot at Centennial High School near the scene of the scheduled meeting between defendant and the young lady impersonating R.H. Morris saw defendant arrive at the meeting place and gesture toward the young lady impersonating R.H. from about 50 feet away. When defendant started walking toward who he thought was R.H., the officers on the scene moved in and arrested defendant. Defendant's cell phone was found on the ground underneath him at the time of his arrest.
¶ 11 Detective Morris testified he interviewed defendant after his arrest. During the interview, which was played for the jury, defendant said R.H. told him she was 15. However, he denied ever talking to or texting R.H. about sex. Defendant claimed he lost his cell phone two weeks earlier and found it the day before in some bushes outside his apartment. However, the phone records showed a sexually explicit message was sent from defendant's phone to R.H. the morning of his arrest, which would have been after he claimed to have found his phone.
¶ 12 Defendant testified at trial and denied texting R.H. explicit sexual messages. He again claimed he lost his phone the weekend before his arrest and did not find the phone until the day before his arrest. Defendant said he was in the area of his arrest getting job applications when he received a text message. He did not pay attention to who sent the message because he was thinking about his job applications. He responded to the text message from R.H.'s cell phone, but he claimed he did not think about who he was meeting. Shortly thereafter, the police arrested him.
¶ 13 On August 31, a jury found defendant guilty of indecent solicitation of a child. On October 14, 2011, the trial court sentenced defendant to 8 years in prison with credit for 144 days' presentence custody credit. The court also ordered defendant to pay a mandatory $500 fine because he had been convicted of a sex offense. Finally, the court ordered defendant to pay court costs. That same day, defendant filed a motion to reconsider his sentence. On October 27, 2011, the court denied defendant's motion to reconsider sentence.
¶ 14 This appeal followed.
¶ 15 II. ANALYSIS
¶ 16 A. Jury Instructions
¶ 17 At the time defendant was accused of indecent solicitation of a child, section 11-6(a) of the Criminal Code of 1961 (720 ILCS 5/11-6(a) (West 2010)) stated:
"A person of the age of 17 years and upwards commits the offense of indecent solicitation of a child if the person, with the intent that the offense of aggravated criminal sexual assault, criminal sexual assault, predatory criminal sexual assault of a child, or aggravated criminal sexual abuse be committed, knowingly solicits a child or one whom he or she believes to be a child to perform an act of sexual penetration or sexual conduct as defined in Section 12-12 of this Code." 720 ILCS 5/11-6(a) (West 2010).
Defendant argues the jury was given incomplete and misleading jury instructions because it was not told it had to find defendant possessed the intent to commit aggravated criminal sexual abuse to find defendant guilty of indecent solicitation of a child. Further, the jury was not instructed ...