THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RICARDO VARA, Defendant-Appellant.
No. 2-14-0849
Appellate Court of Illinois, Second District
December 21, 2016
2016 IL App (2d) 140849
JUSTICE SPENCE delivered the judgment of the court, with opinion. Justices Burke and Birkett concurred in the judgment and opinion.
Illinois Official Reports. Appeal from the Circuit Court of Stephenson County, No. 13-CF-28; the Hon. Michael P. Bald, Judge, presiding. Judgment: Affirmed.
Carl H. Larson, State‘s Attorney, of Freeport (Lawrence M. Bauer and Marshall M. Stevens, of State‘s Attorneys Appellate Prosecutor‘s Office, of counsel), for the People.
¶ 1 This case presents a matter of statutory construction. Defendant, Ricardo Vara, was convicted of grooming pursuant to section 11-25 of the
I. BACKGROUND
¶ 2 Defendant was charged with one count of grooming pursuant to section 11-25 of the Code (the grooming statute).
“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.‘”
¶ 3 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.
¶ 4 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.
¶ 5 One of the text messages on J.D.‘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.”
¶ 6 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.
¶ 7 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 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.”
¶ 10 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.
¶ 11 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.
¶ 12 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 to rule whether the grooming statute reasonably placed defendant on notice of the offense charged.
¶ 13 The court found defendant guilty of grooming beyond a reasonable doubt. The court reasoned as follows. When the alleged offense occurred, J.D. was under the age of 13 and defendant was over the age of 18. The “single most damning piece of evidence” against defendant was the text message itself, which the court understood as intended for J.D.
¶ 14 Defendant moved for a new trial. He argued in part that the evidence did not establish his mental state, that is, that he sent the message to seduce, solicit, lure, or entice, or attempt to seduce, solicit, lure, or entice, J.D. to commit any sex offense. Defendant also moved to vacate his conviction, arguing that the State failed to present evidence necessary to establish the essential elements of the offense of grooming.
¶ 15 At a hearing on the motion to vacate the conviction, defense counsel argued that it was impossible for defendant to have committed the crime as delineated by the grooming statute. The statute required that a defendant entice a child to commit a sex offense. In particular, counsel argued, in this case, the statute required that the child was enticed to commit the crime of predatory criminal sexual assault of a child, making the child both the victim and the perpetrator. The court denied the motion to vacate the conviction.
¶ 16 At the hearing on the motion for a new trial, defense counsel again raised the issue of the statute‘s wording, describing it as a “poorly written statute” that was “very vague” because “asking a child to commit the crime would be an impossible thing.” The State disagreed that the statute required that the child was enticed to commit any offense or that the wording of the statute was unconstitutionally vague. The court denied the motion, reasoning that the statute had survived constitutional challenges in the past.
¶ 18 Defendant timely appealed.
II. ANALYSIS
¶ 19 Defendant argues that the State did not prove an essential element of the offense of grooming, because it would be legally impossible for J.D. to commit a predatory criminal sexual assault, which the statute required that she be enticed to commit. Defendant does not contest the trial court‘s findings. Rather, his argument is based entirely on statutory construction. Questions of statutory construction are questions of law, which we review de novo. People v. Gutman, 2011 IL 110338, ¶ 12.
¶ 20 Defendant argues that section 11-25(a) of the Code required that J.D. personally was enticed to commit the offense of predatory criminal sexual assault. He first notes that the legislature did not define the terms “seduce, solicit, lure, or entice” in section 11-25 of the Code. However, the Code generally defines “solicit” in section 2-20 (
¶ 21 Defendant continues that section 11-25 does not define the terms “seduce,” “entice,” or “lure” and that therefore we must look to their popularly understood meanings. Citing the Merriam-Webster dictionary, defendant asserts that “seduce” means to persuade someone to do something, particularly to have sex. To “lure” is defined as to cause or persuade someone to go somewhere or do something by offering some pleasure or gain. And finally, “entice,” when taken as a transitive verb, means to attract artfully or adroitly or by arousing hope or desire.
¶ 22 Defendant emphasizes that all of these terms, along with the section 2-20 definition of solicit, “have a common theme of persuading someone to do something.” (Emphases in original.) Therefore, the plain language of the statute required that, in order for him to have committed grooming, he must have persuaded or attempted to persuade J.D. to commit a sex offense. Defendant also invokes the rule of lenity, in that an ambiguous criminal statute will generally be construed in the defendant‘s favor. Gutman, 2011 IL 110338, ¶ 12.
¶ 23 Defendant argues that, under the State‘s interpretation of the grooming statute, the offense is identical to the offense of indecent solicitation of a child under section 11-6 of the Code (
¶ 24 Moreover, defendant argues that the State‘s statutory construction would lead to the absurdity of punishing the same crime in vastly different ways. Under the indecent solicitation of a child statute (
¶ 25 Defendant contends that his construction of these two statutes accounts for the different degrees of punishment and avoids questions of unconstitutionality. A defendant who solicits a child for the defendant to commit a predatory criminal sexual assault should receive a harsher punishment. On the other hand, under the grooming statute, a defendant is trying to solicit another person to commit a sex offense and is thus a degree removed from the solicited criminal act, warranting a lesser punishment. If the State wanted to punish defendant for soliciting J.D. to engage in a sexual act with him, it should have charged him under section 11-6(a) with indecent solicitation of a child.
¶ 26 Defendant acknowledges that the legislature “would have recognized that children cannot commit predatory criminal sexual assault of a child.” However, he contends that the legislature drafted section 11-25(a) to include “any sex offense,” which means any sex offense a child can commit. Defendant notes that children can commit sex offenses against other children. See, e.g., In re J.W., 204 Ill. 2d 50, 55 (2004) (12-year-old boy adjudicated delinquent for aggravated criminal sexual assault against two 7-year-old boys.).
¶ 27 Defendant concludes that, under the plain language of the grooming statute, the State had to show that defendant enticed J.D. to commit a sex offense that she was capable of committing against another person. Importantly, as charged, the enticed offense was predatory criminal sexual assault of a child. J.D. was 11 years old when she received defendant‘s text message, but in order to commit a predatory criminal sexual assault, J.D. had to have been at least 17 years old. Accordingly, it was impossible for J.D. to commit a predatory criminal sexual assault, and the State failed to prove that defendant was guilty of grooming.
¶ 28 The State responds as follows. The State has “no quarrel” with defendant‘s definitions of “seduce,” “solicit,” “lure,” or “entice“; their meanings are clear. However, the State disagrees with defendant‘s reading of the grooming statute. The State emphasizes that the definitions of the words are no less important than the grammatical construction of the statute itself. Defendant‘s interpretation—that a defendant must act with the intent that someone else commit an offense—ignores the “all-important” comma before “to commit any sex offense.” The statute provides: “A person commits *** grooming when he or she knowingly uses a computer on-line service *** to seduce, solicit, lure, or entice *** a child, a child‘s guardian, or another person believed by the person to be a child or a child‘s guardian, to commit any sex offense ***” (Emphasis added.)
¶ 29 Next, the State disagrees that the indecent solicitation of a child statute defeats its interpretation of the grooming statute. First, a State‘s Attorney has discretion to prosecute
¶ 30 The State also cites the legislative history of the grooming statute, arguing that the legislature intended a flexible approach to preventing sexual abuse. Senate Bill 2382 created the offense of grooming in response to the fact that people were using the internet to meet and seduce children. See 95th Ill. Gen. Assem., House Proceedings, May 22, 2008, at 54-55.
¶ 31 Turning back to defendant‘s argument, the State agrees that it would be impossible for J.D. to commit the crime of predatory criminal sexual assault of a child. However, this simply demonstrates that defendant‘s construction of the statute is incorrect. Defendant‘s construction leads to an absurd result, which we presume the legislature did not intend. In enacting the grooming statute, the legislature was clearly concerned about acts committed by others against children, not acts committed by children.
¶ 32 We agree with the State. The primary objective of statutory construction is to ascertain and give effect to the legislature‘s intent. Gutman, 2011 IL 110338, ¶ 12. All other rules of statutory construction are subordinate to this cardinal principle. People ex rel. Sherman v. Cryns, 203 Ill. 2d 264, 279 (2003). The most reliable indicator of legislative intent is the language of the statute itself, given its plain and ordinary meaning. Gutman, 2011 IL 110338, ¶ 12. Courts review the statute as a whole, construing words and phrases in light of other relevant statutory provisions and not in isolation. Id. If possible, each word, clause, and sentence must be given a reasonable meaning and should not be rendered superfluous. Id. Courts may also consider the “underlying purpose of the statute‘s enactment, the evils sought to be remedied, and the consequences of construing the statute in one manner versus another.” People v. Garcia, 241 Ill. 2d 416, 421 (2011). Further, we presume that the legislature did not intend to create absurd, inconvenient, or unjust results. Id. Finally, while under the rule of lenity, we generally construe ambiguous criminal statutes in favor of the defendant (Gutman, 2011 IL 110338, ¶ 12); the rule of lenity does not require a construction of the statute that defeats the legislative intent (id.; People v. Jackson, 2011 IL 110615, ¶ 21).
¶ 33 We must therefore attempt to ascertain the legislative intent, beginning with the language of the grooming statute itself. At the time of these events, section 11-25(a) provided:1
“A person commits the offense of grooming when he or she knowingly uses a computer on-line service, Internet service, local bulletin board service, or any other device capable of electronic data storage or transmission to seduce, solicit, lure, or entice, or attempt to seduce, solicit, lure, or entice, a child, a child‘s guardian, or another person
believed by the person to be a child or a child‘s guardian, to commit any sex offense as defined in Section 2 of the Sex Offender Registration Act or to otherwise engage in any unlawful sexual conduct with a child or with another person believed by the person to be a child.”
720 ILCS 5/11-25(a) (West 2012) .
Grooming was a Class 4 felony.
¶ 34 The plain language of the statute prohibits a defendant from, inter alia, using an electronic transmission device to solicit, lure, entice, or seduce a child in order to commit a sex offense. Defendant provides definitions for “solicit,” “lure,” “seduce,” and “entice,” and the State does not contest those definitions. However, we believe that the commonly understood meaning of an additional term aids our analysis: the definition of grooming itself.2
¶ 35 In the context of sexual abuse of a child, grooming is commonly understood as a method of building trust with a child or an adult around the child in an effort to gain access to the child, make the child a cooperative participant in the abuse, and reduce the chance that the abuse is detected or disclosed. See Common Questions, National Sex Offender Public Website, https://www.nsopw.gov/en-US/Education/CommonQuestions (last visited Nov. 2, 2016);3 see also Merriam-Webster Online Dictionary, http://www.merriam-webster.com/dictionary/groom (last visited Nov. 7, 2016) (as a transitive verb, groom means “to get into readiness for a specific objective“). Importantly, we construe the statute with an eye toward the evil the legislature sought to remedy (Garcia, 241 Ill. 2d at 421), and the plain language of the grooming statute makes clear that the legislature sought to prevent sexual abuse of children. Many other states share this understanding of grooming as a method used by sexual abusers to facilitate sexual abuse of children. See, e.g., State v. Coleman, 276 P.3d 744, 749 (Idaho 2012) (in the context of a sexual abuse case, “grooming” meant “conduct intended to foster trust and remove defenses over time through a pattern of seduction and preparation, resulting in the child being willing and compliant to the defendant‘s sexual abuse“); In re K.H., 119 Ohio St. 3d 538, 2008-Ohio-4825, 895 N.E.2d 809, at ¶ 24 (expert testified that the defendant was grooming the minor to be his victim, that is, planning and preparing her for sexual abuse); see also State v. Swinney, 345 P.3d 509, 553-54 (Or. Ct. App. 2015) (testimony that defendant groomed the victim, by increasing touching over time in order to sexually abuse the victim, was admissible); State v. Akins, 315 P.3d 868, 878 (Kan. 2014) (“Grooming is a well-known phenomenon in the context of sexual abuse.“).
¶ 36 While we reach our decision under the plain language of the grooming statute, we agree with the State that our interpretation is consistent with the legislative history of the statute. In adopting section 11-25 of the Code, our legislature understood the danger grooming posed in the age of smartphones and online connectivity, whereby persons could use electronic
¶ 37 We also reject defendant‘s argument that the legislature‘s use of the word “solicit” in the grooming statute required that defendant urged J.D. to personally commit a sex offense. Under section 2-0.5 of the Code, a word or phrase defined by the Code will have the meaning provided by the Code, “except when a particular context clearly requires a different meaning.”
¶ 38 Even if the meaning of “solicit” in the grooming statute were ambiguous, defendant‘s argument would still fail. Under the doctrine of noscitur a sociis—i.e., a word is known by the company it keeps—the meaning of a questionable word or phrase in a statute may be resolved by reference to the meanings of words or phrases associated with it. People v. Qualls, 365 Ill. App. 3d 1015, 1020 (2006). In the grooming statute, “solicit” is closely associated with “seduce,” “lure,” and “entice.” Defendant and the State agree that “seduce” means to persuade someone to do something, particularly to have sex; “lure” means to persuade someone to go somewhere or do something by offering pleasure or gain; and “entice” means to attract by arousing hope or desire. Defendant argues that these words have a common theme in that all involve trying to persuade “someone to do something.” We agree that this is a common theme. However, in the context of the grooming statute, it is clear that persuading “someone to do something” includes persuading a child to engage in sexual conduct with the defendant.
¶ 39 We further reject defendant‘s interpretation of the grooming statute because it would lead to an absurd result. Under defendant‘s interpretation, the child is the one who would have to commit a sex offense. Accordingly, the statute would punish the defendant for encouraging the child to have sex with another child but not punish him for encouraging the child to have sex with the defendant. Grooming is a method by which a person gains access to a child, builds trust with the child, and renders the child susceptible to sexual abuse. Therefore, an interpretation of the grooming statute whereby a defendant is allowed to have access to a child, build trust with the child, and encourage the child to have sex with the defendant, but not with others, is absurd.
¶ 40 Finally, we reject defendant‘s argument that the indecent solicitation of a child statute conflicts with the grooming statute. The State is correct that, when conduct is proscribed by
¶ 41 The State cites elements that differ between the offenses of grooming and indecent solicitation of a child. The different elements in the grooming statute include that an electronic device is used and that grooming may be directed at a child‘s guardian, whereas indecent solicitation must be directed at a child (or one believed to be a child). We recognize these differences but also emphasize that the actus reus for each offense is fundamentally different. Indecent solicitation of a child involves knowingly soliciting “a child *** to perform an act of sexual penetration or sexual conduct.”
III. CONCLUSION
¶ 42 We hold that, under the plain language of section 11-25(a) of the Code, a defendant commits grooming when he seduces, solicits, entices, or lures a child to engage in sexual conduct with the defendant, including conduct that constitutes predatory criminal sexual assault. We reject defendant‘s interpretation that the statute requires not that the defendant would commit the offense but that the child would be enticed to commit the offense, because such a construction is inconsistent with the legislative intent and would lead to an absurd result. Accordingly, the judgment of the Stephenson County circuit court is affirmed. As part of our judgment, we grant the State‘s request that defendant be assessed $50 as costs for this appeal.
¶ 43 Affirmed.