No. 2--02--1359

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

JUSTICE McLAREN delivered the opinion of the court:

Defendant, Daniel Walter, Jr., was charged with three counts of attempt (aggravated criminalsexual abuse) (720 ILCS 5/8--4(a), 12--16(d) (West 1998)). Following a bench trial, defendant wasconvicted of one count of the offense and sentenced to probation. Defendant now appeals from hisconviction. We reverse.

In April 1999, defendant, aged 24, began exchanging e-mails with Rachel K. of Harvard,Illinois. Rachel, who was 15 years old at the time, had placed a personal ad on her e-mail accountin order to meet and get to know new people. Shortly thereafter, she received a response fromdefendant. The two never spoke, but they began to e-mail each other at least once a day. Some ofthe e-mails included discussions of sex and sexual fantasies. In a June 2 communication, defendantdescribed his fantasy of meeting his "pen-pal" in a restaurant, then having sexual relations in a movietheater and, presumably, a hotel room. In another communication, defendant mentioned to Rachela fantasy "of you and your best friend teaming up on me." Rachel responded, "[Y]ou never told meabout this fantasy. [W]hen did you plan on telling me? [A]nd no I'd never do that with my best friendthat would be way too weird!!"

In May 1999, Rachel's father, Fred, discovered some of the sexually-themed e-mails. Hespoke to Rachel about the e-mails, but noticed that she continued to communicate with defendant atleast once a day. In June, Fred printed some of the e-mails from May and June and took them to theHarvard police department. Detective Dean Burton reviewed the e-mails, including a June 2 messagewherein defendant and Rachel discussed meeting in person. Burton met with Rachel on June 15, andhe reviewed all subsequent e-mails between Rachel and defendant. He also told Rachel that, if thesubject of meeting were to come up, she should suggest that defendant meet her in some public place,such as a McDonald's restaurant.

On June 16, Rachel asked defendant if he had thought anymore about meeting in person. Defendant told her that maybe they could meet for lunch on a weekday. Defendant also said:

"As before, whatever makes you comfy is fine by me, if that means brings [sic] yourbest friend or whatever. I'm nervous/weary [sic] about meeting parents, but [if] it makes youfeel better I will. Like I said, I don't know how they'd take to a 24 year old talking to their16 year old daughter."

Defendant said that he thought about Rachel and "those fantasies." The next day, Rachel respondedthat she would feel more comfortable with her best friend present. She still thought about thefantasies and thought that "once we meet we could talk about those fantasies and see how we bothfeel about them." Several days later, defendant e-mailed back that the earliest he could meet Rachelwas July 7 and that "I'm willing to if you are." Rachel responded that they should meet at theMcDonald's in Harvard on July 7.

On July 2, defendant informed Rachel that he planned to arrive at noon. He said he couldstay:

"For a couple of hours. We'll see, maybe you can convince me to stay more ...? Nottoo much though, because I still have to work that day."

On July 6, Rachel sent an e-mail describing what she and her friend would be wearing the nextday. At Burton's behest, she also mentioned that there was a hotel near the McDonald's. Defendantresponded, "That sounds interesting. That may be a possibility : )."

Detective Burton went to the McDonald's at about 11:15 a.m. on July 7. Rachel was notpresent. Burton, who had seen a picture of defendant, saw him enter the McDonald's, buy a meal,and sit in a booth. Defendant sat in the booth, eating and reading a newspaper, for about one hour. As defendant left, Burton followed him out to the parking lot and introduced himself, but tolddefendant, "you might better know me as Rachel." Although Burton told defendant that he was notunder arrest, an unmarked squad car pulled behind defendant's car so that he could not exit theparking lot in his car. Defendant agreed to accompany Burton to the police station to discuss thesituation regarding Rachel. When asked if he knew that he had been exchanging e-mails with a 16-year-old girl, defendant stated that he did, and that he knew that Rachel was only 15 when they begane-mailing each other. He was also aware that, if he had committed the sexual acts that he haddiscussed with Rachel, he would have committed a crime.

Defendant consented to a search of his car. Officers found a bag containing a candy bar anda box of condoms. The receipt in the bag showed that the items had been purchased that morning. According to Burton, defendant stated that he bought the condoms "just in case he did have sex withRachel that day" and that if he did not have sex with Rachel, he would use them with his girlfriend. The officers also found two atlases in the car. Defendant told the officers that he used an atlas andthe Internet to determine how to get to Harvard.

Defendant also gave Burton a written statement, which included, in relevant part:

"So I figured we could meet for lunch, to put a name to the face. She sent a finalcouple of emails, one of which referred to possibly acting out the fantasy. I said, it was apossibility. I then began to wonder if she were serious--because I was going to be in serioustrouble if I did follow through! Just in case, I bought a box of condoms (3) and wasconvinced that I would only go through with it if she understood that I (and she) could getin serious trouble. *** I decided against action, unless Rachel was provocative.

* * *

I had no intention of sleeping with a 16-year-old unless the situation felt right (whichwould have been Rachel acting far more adult than her age). I had no malicious or violentintent whatsoever. I acknowledge that I engaged in fairly risky, serious behavior and that Iacted against my better judgment in wanting to meet her. However, that was all I waslooking for--a lunch with an email/internet friend and her best friend."

Burton reviewed the evidence with the State's Attorney's office, then placed defendant underarrest. He obtained search warrants for defendant's home and office. Officers seized defendant'scomputers from both locations and several computer disks from his home. In addition, Burton founda piece of paper near defendant's home computer that contained the telephone numbers of a hotel anda motel in Harvard and a dollar amount near the hotel telephone number. Burton also seized fromdefendant's bedroom an open box containing three sealed condoms.

The trial court found defendant guilty of attempt (aggravated criminal sexual abuse) in thatdefendant:

"[K]nowingly traveled to the McDonald's Restaurant located at 353 South DivisionStreet, Harvard, Illinois in order to meet a minor, R.K., for the purpose of engaging in sexualconduct with R.K. ***."

Defendant now contends that he was not proven guilty of that charge beyond a reasonable doubt. We agree.

In assessing an argument that the evidence was insufficient to sustain a conviction, it is notthis court's function to reweigh the evidence; rather, the issue is whether, after viewing the evidencein the light most favorable to the State, any rational trier of fact could have found the essentialelements of the crime beyond a reasonable doubt. People v. Scott, 318 Ill. App. 3d 46, 53 (2000). It is the role of the trier of fact to resolve contradictory evidence and factual disputes and to weighthe credibility of witnesses. Scott, 318 Ill. App. 3d at 53.

To prove a defendant guilty of attempt, the State must establish beyond a reasonable doubtthat the defendant intended to commit the offense and that he took a substantial step toward thecommission of the offense. 720 ILCS 5/8--4(a) (West 1998); Scott, 318 Ill. App. 3d at 52-53. Forpurposes of this case, a person commits aggravated criminal sexual abuse when he:

"[C]ommits an act of sexual penetration or sexual conduct with a victim who was atleast 13 years of age but under 17 years of age and the accused was at least 5 years older thanthe victim." 720 ILCS 5/12--16 (d) (West 1998).

We first address whether any rational trier of fact could have found that defendant possessedthe requisite intent to commit aggravated criminal sexual abuse. Intent need not be expressed, butmay be inferred from the defendant's conduct and the surrounding circumstances. Scott, 318 Ill. App.3d at 53. Here, the evidence shows that defendant and Rachel sent each other dozens of e-mails, thevast majority of which were not sexual in nature. Although defendant had brought up the possibilityof meeting, he dropped the issue, and it was not brought up again until Rachel raised it at DetectiveBurton's instigation. Even at that point, Rachel insisted that her best friend be present; defendantagreed and said in his written statement that he looked forward to "a lunch with an email/internetfriend and her best friend." Rachel even described the clothing that she and her friend would bewearing. Rachel's remark, also instigated by Burton, that there was a hotel near the McDonald's,drew the noncommittal response, "That sounds interesting. That may be a possibility : )." There wasno other discussion of a sexual nature. Defendant found the telephone numbers of a hotel and a motelin Harvard, and evidently called one of the establishments for price information. However, there wasno evidence that he knew the address of either establishment or made a reservation, and he did notbring the information with him to Harvard.

Defendant's written statement to the police was vague. While defendant acknowledged histhoughts about having sex with Rachel, and also acknowledged the trouble he would be in if he didso, he filled the statement with phrases such as, "Just in case," "if I did follow through," "I would onlygo through with it if," "I decided against action, unless," and "I had no intention of sleeping with a16 year old unless" (all emphases added). This does not clearly indicate intent; it is at mostconditional.

Scott, while very similar, is distinguishable. In Scott, a detective went into an on-line chatroom, pretending to be a 12-year-old boy named "Ricky." The defendant and Ricky chatted,including references to sexual matters, and agreed to meet later that day. The defendant did notappear at the meeting, but he e-mailed Ricky the next day. They engaged in a sexually suggestivedialogue for about one hour. The defendant mentioned the possibility that he could get into troubleif he had sex with Ricky; nevertheless, he wanted to meet and become acquainted with him. Rickythen requested that the defendant send him pictures of men engaged in sexual conduct. Thedefendant complied, sending two computer images of nude young males, including one image ofsexual penetration. Scott, 318 Ill. App. 3d at 53. The two then agreed to meet the following day. The defendant was arrested when he appeared at the agreed-upon location. The defendant stated thathe knew that "Ricky" was 12 years old and further stated that he would have had sex with him ifRicky had wanted to do so. Scott, 318 Ill. App. 3d at 49.

This court found an unambiguous intent to engage in an act of sexual penetration. See Scott,318 Ill. App. 3d at 53. However, while the facts in the case before us appear similar, one fact fromthis case stands out and casts ambiguity upon defendant's intent: Rachel's best friend was to bepresent at the planned meeting. This fact places all of defendant's conduct in a different context. Inlight of the planned presence of Rachel's friend, defendant's research of Harvard hotels (already ofquestionable import because the information was not taken to Harvard and there was no evidence thatany reservation was made) and his purchase of condoms appear to suggest wishful thinking andfantasy, as opposed to actual planning and intent. Hope and fantasy do not equal intent, even if theylead to actions that could make the fantasy come true. Every man going on a blind date with acondom in his wallet might hope to have sex, but that does not mean he intends to have sex; this isespecially so where the circumstances of the date are not conducive to privacy. The impossibility ofcompleting the offense attempted is not a defense (People v. Patterson, 314 Ill. App. 3d 962, 969(2000)); similarly, the mere possibility of completing an offense is not proof of intent to commit theoffense.

None of this is to make light of the situation or to dismiss defendant's actions as someadolescent fantasy. Defendant seems to have appreciated the inappropriateness of his sexualconversations with Rachel and the potential legal implications of any sexual activity with her. Yet,he continued his contact with her. It is true that the sexual aspects of their conversations ceased aftermid-June until Rachel, at Burton's behest, brought up the existence of a nearby hotel. Defendant'sresponse was noncommittal, but it should have been adamant that there would be no sex. Defendantshould have acted like a responsible adult; instead, he acted like an irresponsible teenager and led bothRachel and himself on. But while defendant's conduct was pathetic, inappropriate, and ill-advised,we conclude that it falls short of demonstrating an actual intent to have sex.

Even if we were to conclude that the trial court's finding of intent was supported by theevidence, we would still conclude that defendant did not take a "substantial step" toward thecommission of the offense of aggravated criminal sexual abuse. While it is not necessary for adefendant to complete the last proximate act in order to be convicted of attempt, mere preparationis insufficient to be considered a substantial step. Patterson, 314 Ill. App. 3d at 971. Determiningwhat conduct will be held to be a substantial step must be determined by the facts and circumstancesof each case. Patterson, 314 Ill. App. 3d at 971.

Like Scott, Patterson involved a police detective (the same detective as Scott) representinghimself as an underage boy on the Internet and agreeing to meet the defendant for a sexual encounter. In Patterson, this court found that the defendant's conduct constituted a substantial step toward thecommission of the offense of aggravated criminal sexual abuse because he "completed every step andaction that he possibly could have." Patterson, 314 Ill. App. 3d at 971. This conduct includedarranging to meet the boy (called "Yacoo") at a specific time and place, describing his car and theclothing he would be wearing, sending Yacoo a picture of himself to aid in identification, travelingto the agreed-upon location at the appointed time, admitting to police that he was waiting for a 15-year-old boy, and "agree[ing] [on the Internet] to perform oral sex on Yacoo that day." Patterson,314 Ill. App. 3d at 971. In Scott, we concluded that, while Internet communication alone wasinsufficient to constitute a substantial step, a rational trier of fact could find such a step by couplingthe communication with the act of driving to an agreed-upon location. See Scott, 318 Ill. App. 3dat 55.

Here, we cannot set the bar as low as we did in Scott, and we distinguish Scott insofar as itruled on the issue of substantial step. In Patterson, Scott, and the case before us, the defendant wasto meet the potential victim in a restaurant. No sexual act would occur in the public portion of therestaurant. Any sexual act would have required the defendant and the victim to go to anotherlocation, such as a bathroom at the restaurant, the defendant's car, or a hotel. Here, where thearranged meeting, already planned to occur in a public place, was to include Rachel's best friend, andwhere the communications leading up to the meeting were not explicitly about sexual matters, merelyshowing up at the restaurant does not lead to the inevitable conclusion that a sexual act would occur.Had the meeting been arranged to take place in a hotel, a private residence, a highway rest stopbathroom, or merely in defendant's car in a parking lot, a substantial step toward the commission ofthe offense could reasonably be found. However, under these facts, merely driving to a meeting ina very public place falls short of such a substantial step. Defendant's actions, though ill-advised, didnot constitute a substantial step toward the commission of the offense of aggravated criminal sexualabuse.

Because of our disposition of this issue, we need not address defendant's contention that thetrial court admitted evidence in error.

For these reasons, the judgment of the circuit court of McHenry County is reversed.

Reversed.

HUTCHINSON J., concurs.

JUSTICE GILLERAN JOHNSON, dissenting:

I respectfully dissent. The evidence in this case was more than sufficient to prove that thedefendant committed an act of attempted aggravated criminal sexual abuse. The State proved,beyond a reasonable doubt, that the defendant intended to commit an act of aggravated criminalsexual abuse and that he took a substantial step toward the commission of that offense.

In reviewing the sufficiency of the evidence, we should not retry the defendant. People v.Jamesson, 329 Ill. App. 3d 446, 458 (2002). Rather, we should consider whether, after viewing theevidence in the light most favorable to the prosecution, any rational trier of fact could have found theessential elements of the crime beyond a reasonable doubt. People v. Patterson, 314 Ill. App. 3d 962,968-69 (2000). Indeed, the trial court's judgment shall not be set aside unless the proof is sounsatisfactory, improbable, or implausible as to justify a reasonable doubt as to the defendant's guilt. People v. Campbell, 146 Ill. 2d 363, 374-75 (1992); People v. Slim, 127 Ill. 2d 302, 307 (1989). Great deference must be given to trial judges when they hear the evidence and observe the witnesses. People v. Austin, 328 Ill. App. 3d 798, 804 (2002). The majority gives brief lip service to thisstandard and then surreptitiously overlooks it when reaching its erroneous conclusion that thedefendant lacked intent.

In this case, a rational trier of fact could have found that the defendant intended to commitaggravated criminal sexual abuse. Intent, in attempt cases, is a mental state seldom susceptible ofdirect proof, but which often must be inferred from circumstantial evidence. People v. Williams, 295Ill. App. 3d 663, 665 (1998). Such evidence existed in this case. The defendant here, a 24-year-oldman, corresponded via e-mail with a 16-year-old girl. Many of the e-mails were sexually explicit. In one such e-mail, the defendant fantasized about meeting an Internet "pen-pal" in a restaurant andthen having sex with her in a movie theater and again later in a hotel room. In another e-mail, thedefendant described a sexual encounter that he would like to have with the victim, involvingcondoms, oral sex, and showering together. In yet another e-mail, the defendant talked about beingthe victim's first sexual partner and having sex with both the victim and her friend at the same time.

After inappropriately corresponding with the victim for a month, the defendant arranged tomeet the victim and her friend at a McDonald's restaurant. In preparation for the meeting, thedefendant obtained the names and telephone numbers of a hotel and a motel near the restaurant. Hecalled the hotel for price information. In one of his e-mails, the defendant suggested to the victimthat he would be willing to spend more than a couple of hours with her. On the scheduled date andtime, the defendant arrived at the restaurant with condoms that he had purchased that morning. Thedefendant admitted to the police that he had bought the condoms "just in case" he had sex with thevictim that day. Given these facts, the trial court found that the defendant intended to have sex withthe victim. The trial court's finding was not improbable or implausible.

Furthermore, a rational trier of fact certainly could have found that the defendant took asubstantial step toward committing aggravated criminal sexual abuse. The defendant asked the victimto meet him, he arrived at the agreed-upon meeting place at the arranged time, and he came preparedto have sex with the victim.

In summary, the evidence was more than sufficient to prove that the defendant committed anact of attempted aggravated criminal sexual abuse. The record reveals that the defendant bothintended to commit the offense and took a substantial step in its commission. The trial court's findingof guilt should not be disturbed.