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People v. Gaciarz

Court of Appeals of Illinois, Second District

December 19, 2017

MAREK P. GACIARZ, Defendant-Appellant.

         Appeal from the Circuit Court of Kane County. No. 15-CF-43 Honorable Donald Tegeler Jr., Judge, Presiding.

          JUSTICE HUTCHINSON delivered the judgment of the court, with opinion. Presiding Justice Hudson and Justice Spence concurred in the judgment and opinion.



         ¶ 1 Following a bench trial, defendant, Marek P. Gaciarz, was convicted of involuntary sexual servitude of a minor (720 ILCS 5/10-9(c) (West 2014)), traveling to meet a minor (720 ILCS 5/11-26(a) (West 2014)), and grooming (720 ILCS 5/11-25(a) (West 2014)). The State's evidence established that defendant responded via text messages to an online advertisement for a female prostitute. The advertisement made no mention of a minor. An officer from the Aurora police department placed the advertisement as part of an undercover sting operation conducted with the assistance of special agents from the United States Department of Homeland Security. Defendant was arrested inside a hotel room after he exchanged money with a special agent. The State argued that defendant's intent to have sex with a minor was established through his exchange of text messages in response to the advertisement. Defendant maintained that he intended to have sex with an adult and that he did not understand the references in the text messages to mean that he would be meeting with a minor. On appeal, defendant contends that: (1) the evidence was insufficient to prove him guilty beyond a reasonable doubt; (2) the trial court erroneously allowed an incomplete video recording to be admitted into evidence; and (3) his trial counsel provided ineffective assistance by failing to inspect the video-recording equipment. We affirm.

         ¶ 2 I. BACKGROUND

         ¶ 3 Many of the facts in this case are undisputed. On January 8, 2015, defendant responded via text messages to the phone number listed in an advertisement for a female prostitute on the website "" The advertisement was titled: "young warm and ready:) - 18. " It featured a picture of a brunette female wearing cut-off jean shorts and a midriff-baring shirt. The female's face could not be seen. The advertisement read as follows:

"its ssooooooo cold outside, come warm up with a hot little co ed. Im young, eager to please and more than willing to meet all your desires. come keep me warm and I promise to return the favor:0:):) ask about my two for one special text me at [xxx-xxx-xxxx]..
100 donation for hh
150 donation full hour
Poster's age: 18"

         ¶ 4 In responding to the advertisement, defendant unknowingly exchanged a series of text messages with Aurora police officer Erik Swastek. The pertinent text messages read as follows:

"Defendant: Hey how you doing
Swastek: hey sweetie
Defendant: I like your ad do you have more pic
Swastek: sorry baby, I don't send pics, too risky cause of mygirls age
Defendant: Okay where you guys live
Swastek: what are u looking for
Defendant: I would like to spend 1 h
Swastek: ok its 150 for the hour, which girl u want, i got a 14 yo blnd and 15 yo brunette Defendant: Brunette
Swastek: ok baby, what do u want for the hour
Defendant: Kisses and bj
Swastek: ok, you have to wear a condom for oral, I don't want my daughter catching anything
Swastek: is that cool
Defendant: Okay no problem am young and I wanna be safe too"

         In the text messages that followed, Swastek gave defendant the address for an Aurora hotel. When defendant arrived at the designated room, he was to knock on the door and say a specific phrase. (We have omitted any further details for fear of compromising future operations.)

         ¶ 5 Inside the hotel room, Special Agent Melissa Siffermann assumed the role of the "mother" who had exchanged the text messages with defendant. Special Agent Geoffrey Howard monitored the interaction from an adjoining room, using video-recording equipment. Howard had placed cameras inside Siffermann's room and in the hallway that led to Siffermann's room. During discovery, it was revealed that the video recording from inside Siffermann's room was separated into four segments with gaps of unrecorded time between the segments. The time stamps indicate that the entire recording took place between approximately 11:40 and 11:43 p.m. The following events are depicted in the four segments.

         ¶ 6 The first segment is approximately six seconds long. The television can be heard in the background and there is an audible knock on the hotel room door. There is a six-second gap of unrecorded time between the first and second segments.

         ¶ 7 The second segment is approximately 15 seconds long. Siffermann answers the door and introduces herself as "Michelle." She appears to be in the process of brushing her teeth. She exchanges pleasantries with defendant as she removes some items from a chair. She asks defendant if he would like to sit down and says that she is "sorry about the mess." ...

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