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People v. Vara

Court of Appeals of Illinois, Second District

December 21, 2016

RICARDO VARA, Defendant-Appellant.

         Appeal from the Circuit Court of Stephenson County, No. 13-CF-28 Honorable Michael P. Bald, Judge, Presiding.

          JUSTICE SPENCE delivered the judgment of the court, with opinion. Justices Burke and Birkett concurred in the judgment and 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 ...

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