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THIRD DIVISION
March 24, 2004

JUSTICE KARNEZIS delivered the opinion of the court:

Following a bench trial, the trial court convicted defendant Corey Braddock ofsolicitation of a sex act in violation of section 11-14.1(a) of the Illinois Criminal Code of1961 (720 ILCS 5/11-14.1(a) (West 2002)) (Criminal Code) and sentenced him to sixmonths' supervision. The court denied defendant's motion for a new trial and motion inarrest of judgment. Defendant appeals the denial of his posttrial motions, arguing thathis conviction should be reversed because (1) section 11-14.1(a) is unconstitutionalbecause it is overbroad and vague; (2) he was not proven guilty beyond a reasonabledoubt; and (3) a fatal variance existed between the evidence presented and thecharges in the complaint. We affirm.

Background

Defendant, a City of Chicago police officer assigned to the Internal AffairsDivision (IAD), was arrested on September 24, 2003, for offering Johanna Kramp, anundercover Chicago police officer working a prostitution sting investigation, money inexchange for sex. Defendant was charged with "solicitation for prostitution in that he approached the complainant and offered $50.00 U.S.C. in exchange for theperformance of sexual intercourse in violation of 720 ILCS 5/11-15(a)(1)."⁽¹⁾ At trial, overdefendant's objection, the court allowed the State to amend the complaint to allege thatdefendant "committed the offense of solicitation of a sex act in that he approached thecomplainant and offered $50.00 U.S.C. in exchange for the performance of sexualintercourse, an act of sexual penetration as defined in 720 ILCS 5/12-12(f) in violationof 720 Illinois Compiled Statutes 5/11-14.1(a)." The court offered defendant acontinuance in which to prepare his case given the amended complaint but defendantdeclined and elected to proceed to trial.

At trial, Officer Kramp testified that, at approximately 3:40 a.m. on September 24,2003, she was in civilian clothes working as a decoy in the 900 block of West BelmontAvenue in Chicago. She noticed the driver of a white Ford Explorer staring at her as hepassed her three or four times at a reduced speed. She identified defendant as thedriver. Defendant pulled his car into an alley, parked and got out of the car. Heapproached Officer Kramp and asked her whether she was looking for a date. Shesaid she was and asked him what he was looking for. He replied that he was lookingfor sex. She understood "sex" to mean "an act of sexual penetration." Officer Krampthen asked how much money defendant had and he responded by asking how muchshe charged. When she said $30 or $40, he responded "fine, okay."

Officer Kramp told defendant to meet her at 3229 Wilton in his car. OfficerKramp started walking through the alley to that location and defendant returned to hiscar. As he was driving through the alley, defendant stopped Officer Kramp again. Officer Kramp asked him whether he had the money and defendant told her not toworry about it, that he was a police officer and would not "fuck [her] around." Heshowed Officer Kramp his police star, told her he was with IAD and he was "just lookingto get his nut off." From her experience working in plain clothes, Officer Kramp wasfamiliar with the street terms used during the solicitation of prostitution and her onlyunderstanding of the term "get my nut off" was that it meant "an act that would causehim to ejaculate."

Officer Kramp asked defendant to show her the money. He told her that hecould go get money. He asked her whether she was at least 17 years old and whethershe had a condom. When she replied that she was 23 and did have a condom,defendant left. Officer Kramp radioed her backup officers and arranged for help shouldthe transaction occur. When defendant returned, she asked him again whether he hadthe money. "He indicated that he did have the money, $50, and showed [her] somemoney." Officer Kramp saw money in defendant's hand and told him to pull into aparking spot. She then gave the prearranged signal to her backup officers indicatingthat the transaction was complete. Defendant slowly drove past the parking spot buttwo backup officers in unmarked cars stopped him. This was the last contact OfficerKramp had with defendant. She wrote a summary of the events on the arrest report,stating that defendant asked for sex. She explained that "sex" is the same terminologyas "sexual intercourse".

Officer Ricardo Fernandez testified that he stopped defendant's car after he sawOfficer Kramp give the signal. During the patdown, defendant stated that he was apolice officer and asked that he be given a break. Officer Fernandez did not inventorydefendant's wallet although that was standard procedure.

After the close of the State's case, defendant moved for a directed finding,arguing that the State failed to prove the elements of the amended complaint becausethere was no testimony that defendant solicited or that Officer Kramp agreed to perform"sexual intercourse" as specified in the complaint. Defendant argued that the onlytestimony reference was to the generic term "sex," which could encompass a myriad ofacts besides sexual penetration. The court agreed that the complaint was very specificin its allegation that defendant solicited "sexual intercourse, an act of sexualpenetration" but stated that Officer Kramp testified that she understood the word "sex"to mean an act of sexual penetration and denied the motion.

Defendant then testified. He was driving home at 3:40 a.m. from an investigationlocation which he could not disclose⁽²⁾ when he saw a girl who looked "pretty young"standing on the street. He pulled over and asked whether he could help her withanything. She asked him whether he was looking for a date and he said he was notand that he would like to help her. He moved his car to Wilton at her behest. He toldthe girl about opportunities to get off the street and about Sister-to-Sister, a program towhich he referred women in need of help. After she asked him again whether he waslooking for a date, he told her that he was a police officer with IAD and terminated theconversation because she did not want help. Defendant denied driving by OfficerKramp multiple times, asking for sex, saying he wanted to "get [his] nut off," asking herage or whether she had a condom.

In rebuttal, Officer Kramp testified that defendant never told her about Sister-to-Sister, alternatives to working on the street or anything other than what she had relatedearlier.

Following closing argument, the court stated that it found Officer Kramp credibleand that the State proved defendant guilty beyond a reasonable doubt. Defendant fileda motion for a new trial and a motion in arrest of judgment. The court denied themotions and sentenced defendant to six months supervision. Defendant timely appealsthe court's denial of his posttrial motions.

Analysis

Constitutionality of Statute

Defendant appeals the court's denial of his motion in arrest of judgment whereinhe argued that (a) the statute is unconstitutionally overbroad and vague and (b) thecomplaint did not charge defendant with sufficient specificity to allow him to prepare hisdefense or to plead a resulting conviction as a bar to future prosecution arising from thesame conduct. On appeal, defendant argues only that the statute is unconstitutionallyoverbroad and vague and, therefore, void. We review the constitutionality of a statutede novo. People v. Hill, 333 Ill. App. 3d 783, 785, 776 N.E.2d 828, 831 (2002).

Section 11-14.1(a) states:

"Any person who offers a person not his or her spouse any money,property, token, object, or article or anything of value to perform any act ofsexual penetration as defined in Section 12-12 of this Code, or any touching orfondling of the sex organs of one person by another person for the purpose ofsexual arousal or gratification, commits the offense of solicitation of a sexualact." 720 ILCS 5/11-14.1(a) (West 2002).

The doctrine of overbreadth only applies to invalidate a statute if the statuteinhibits the exercise of rights of expression or association protected by the firstamendment. Hill, 333 Ill. App. 3d at 786, 776 N.E.2d at 831; People v. Bailey, 167 Ill.2d 210, 226, 657 N.E.2d 953, 961 (1995). Freedom of speech is a basic firstamendment right and, arguably, defendant should be free to communicate with anywoman he chooses in any way he chooses, including, under defendant's scenario,offering her items of value in exchange for sex. However, " '[w]here speech is anintegral part of unlawful conduct, it has no constitutional protection.' " Bailey, 167 Ill. 2dat 227, 657 N.E.2d at 961-62, quoting Chicago Real Estate Board v. City of Chicago, 36 Ill. 2d 530, 552-53, 224 N.E.2d 793 (1967). Our legislature has determined thatoffering money or items of value in exchange for sex is unlawful conduct. 720 ILCS5/11-14.1(a) (West 2002). Therefore, when defendant offered Officer Kramp $50 inexchange for sex, he was not engaged in a protected activity because he exercised hisright to free speech in the commission of a criminal offense. See Hill, 333 Ill. App. 3d at787, 776 N.E.2d at 832 (erotic dancing is expressive conduct protected by firstamendment; however, erotic dancing involving dancer touching sexual organs of patronfor money for purpose of patron's sexual arousal is not protected conduct because itfalls within the specified strictures of section 11-14(a) (720 ILCS 5/11-14(a) (West2002)). The element of an offer of something of value is an integral part of thesolicitation offense because the offense cannot occur without such an offer. Therefore,the element of speech in the solicitation statute, the offer, is not constitutionallyprotected. Accordingly, no first amendment concerns are at issue here and the statuteis not void for overbreadth. See Bailey, 167 Ill. 2d at 227, 657 N.E.2d at 961 (in contextof stalking statute, court held that element of threat in the stalking statute is integralpart of the offense; stalking offense cannot be committed without initiation of the threatand, therefore, this speech element of the statute is not constitutionally protected).

Defendant also argues that the statute is unconstitutionally vague because itencompasses not only the offer of money but the offer of any valuable item in exchangefor sex and that this would make a prostitute of any woman who agrees to sex in thecontext of a social situation. In order to survive a vagueness challenge, a criminalstatute must (a) provide a person of ordinary intelligence with a reasonable opportunityto distinguish between lawful and unlawful conduct and (b) adequately define theoffense to prevent arbitrary and discriminatory enforcement. Hill, 333 Ill. App. 3d at788, 776 N.E.2d at 833. Where, as here, the statute does not implicate firstamendment concerns, the challenging party must show that the statute is vague asapplied to the conduct for which the party was prosecuted. Hill, 333 Ill. App. 3d at 788,776 N.E.2d at 833; Bailey, 167 Ill. 2d at 228, 657 N.E.2d at 962. Accordingly, only thevagueness of the term "money" is at issue because it is for offering money in exchangefor sex that defendant was prosecuted.

The word "money" is not defined in the statute and we will, therefore, assumethat the word has its "ordinary and popularly understood meanings." Bailey, 167 Ill. 2dat 229, 657 N.E.2d at 962. Giving the word "money" its plain and ordinary meaning, itis clear that "money" is in no way a vague term. It can only be understood to meancurrency of some type, such as the bills which defendant showed Officer Kramp. Astatute must convey "sufficiently definite warnings that can be understood whenmeasured by common understanding and practices" and "impossible levels ofspecificity are not required." Bailey, 167 Ill. 2d at 229, 657 N.E.2d at 963. Here, thestatute is not vague as applied to defendant's conduct, as alleged in the complaint,because it unambiguously prohibits that conduct by providing adequate and clearlyunderstandable notice that the offer of money in exchange for sex is proscribed. Although there may be cases in which some uncertainty exists as to a statute'sapplicability, that does not render the statute unconstitutional as to conduct aboutwhich no uncertainty exists. People v. Wilkenson, 262 Ill. App. 3d 869, 875-76, 635N.E.2d 463, 467 (1994), quoting People v. Vandiver, 51 Ill. 2d 525, 530, 283 N.E.2d681 (1971). Section 11-14.1(a) is neither overbroad nor vague as applied here andthus not unconstitutional.

Defendant cites to People v. Johnson, 60 Ill. App. 3d 183, 376 N.E.2d 381(1978), in support of his argument that the statute is an unconstitutionally vague and overbroad attempt to regulate sexual conduct in general, including sexual acts resultingfrom ordinary social motives, such as a woman agreeing to sex in exchange for anexpensive dinner or a date at a concert. In Johnson, the defendant contested theconstitutionality of the statute under which she was found guilty of prostitution foroffering to perform a sex act for money, arguing that it was an overbroad and vagueattempt to regulate sexual conduct in general. The statute, section 11-14(a) of theCriminal Code, stated that "[a]ny person who performs, offers or agrees to perform anyof the following acts for money commits the act of prostitution: * * * [a]ny act of sexualintercourse; or * * * [a]ny act of deviate sexual conduct." Ill. Rev. Stat.1975, ch. 38, par.11-14(a) (now 720 ILCS 5/11-14(a) (West 2002)). The Johnson court determined thatthe statute was specifically directed at a defined "evil," the performance or agreementto perform sex acts for money. Johnson, 69 Ill. App. 3d at 187, 376 N.E.2d at 384. Since the statute applied only to those who perform, offer or agree to perform sex actsfor money, the court determined that the statute could not apply to sexual acts resultingfrom social situations and did not discourage "exchanges of sexual acts as a part ofsocial companionship or for gifts of material goods." The statute was, therefore, notoverbroad or vague.

Based on Johnson, defendant argues that, because the statute at issue hereprohibits all types of consideration, not just money, it necessarily must be overbroadand vague because it makes a prostitute of any woman who offers, performs or agreesto perform sexual acts in exchange for an expensive dinner or concert. We note,however, that the statute at issue here greatly differs in its focus from the statute atissue in Johnson. In Johnson, the statute focused on the prostitute and her offer to sellsexual favors. In contrast, the statute here focuses on the person on the other side of asexual transaction, the prospective client and his or her offer to purchase sexual favors. Contrary to defendant's assertions, the statute does not make a prostitute of someonereceiving such an offer. The statute focuses on the person making the offer, on thebuyer and not the seller. Nor does the statute attempt to punish "mere conversation" orcriminalize, to use defendant's example, a woman's request for an expensive gift inexchange for sexual favors. Clearly, it is the "client's" offer to purchase a sex act whichis illegal and the statute is entirely clear as to what constitutes such an offer.

Lastly, because the statute does not implicate first amendment rights andbecause defendant's conduct clearly falls within the strictures of the statute, defendanthas no standing to raise a facial challenge to the statute. Bailey, 167 Ill. 2d at 231, 657N.E.2d at 963. The court did not err in denying defendant's motion in arrest ofjudgment.

Reasonable Doubt

Defendant argues that he was not proven guilty beyond a reasonable doubt. When considering a challenge to the sufficiency of the evidence, we must determine,viewing the evidence in the light most favorable to the prosecution, whether anyrational trier of fact could have found the essential elements of the crime were provenbeyond a reasonable doubt. People v. Hall, 194 Ill. 2d 305, 330, 743 N.E.2d 521, 536(2000). Defendant was charged with committing "the offense of solicitation of a sex actin that he approached the complainant and offered $50.00 U.S.C. in exchange for theperformance of sexual intercourse, an act of sexual penetration as defined in 720 ILCS5/12-12(f) in violation of 720 Illinois Compiled Statutes 5/11-14.1(a)." In order tocommit the offense of solicitation of a sexual act, defendant must be shown to haveoffered a person not his spouse money or something of value "to perform any act ofsexual penetration as defined in Section 12-12 of this Code, or any touching or fondlingof the sex organs of one person by another person for the purpose of sexual arousal orgratification."⁽³⁾ 720 ILCS 5/11-14.1(a) (West 2002). Those elements are clearly shownhere.

Officer Kramp testified that defendant asked her for "sex," told her that hewanted to "get his nut off," requested her price for sex, agreed thereto, showed her themoney and moved his car to the location she suggested. Officer Kramp testified thatshe understood defendant to have solicited her for sexual intercourse because, in herexperience, "sex" meant "an act of sexual penetration" and "get his nut off" meant "anact that would cause him to ejaculate." The court stated that it found Officer Krampcredible and that, based on the credibility of the witnesses, it found defendant guiltybeyond a reasonable doubt.

Credibility of witnesses and assessment of their testimony and the inferences tobe drawn therefrom are for the trier of fact to determine and we will not substitute ourjudgment for that of the trier of fact on those issues unless the evidence is soimprobable as to justify reasonable doubt as to the defendant's guilt. People v. Mullen,313 Ill. App. 3d 718, 724, 730 N.E.2d 545, 551 (2000); People v. Slim, 127 Ill. 2d 302,307, 537 N.E.2d 317, 319 (1989). The court was the trier of fact here. The courtbelieved Officer Kramp rather than defendant, reiterating its credibility determinationduring the hearing on defendant's posttrial motions and noting that it had considereddefendant's demeanor and manner while testifying. This credibility determination wasfor the court to make and not so improbable as to justify reasonable doubt as todefendant's guilt.

Defendant cites to People v. Thoma, 171 Ill. App. 3d 313, 525 N.E.2d 572(1988), wherein the court found that the defendant took no substantial step toward thecrime of attempted patronizing a prostitute where the defendant's conduct consistedonly of speech. Thoma is inapposite. In order to patronize a prostitute, one mustactually have engaged in an act of sexual penetration with a prostitute or entered orremained in a place of prostitution with the intent to engage in such an act. 720 ILCS5/11-18 (West 2002). In contrast, the solicitation-of-a-sexual-act statute has no intentelement and speech alone is, therefore, sufficient to determine whether the offense hasbeen committed. The offense here was complete when the salient words, an offer topurchase a sexual act for money, were spoken. The court found that the offer wasproven beyond a reasonable doubt and we will not substitute our judgment of disputedevidence for the trial court's where the court heard the evidence, observed thewitnesses and arrived at a reasonable and plausible conclusion. Johnson, 60 Ill. App.3d at 191, 376 N.E.2d at 387.

Fatal Variance

Defendant argues that a fatal variance existed between the charge thatdefendant solicited "sexual intercourse, an act of sexual penetration" and the proof attrial, asserting that there was no evidence that defendant specifically asked for sexualintercourse as charged in the indictment. We disagree. Granted that "sexualintercourse" and "sexual penetration" are not synonymous, sexual intercourse beingonly one of many forms of sexual penetration. However, the commonly understoodmeaning of "sex" is sexual intercourse, and we do not find the fact that defendant usedthe word "sex" rather than "sexual intercourse" in his negotiation with Officer Kramp orOfficer Kramp's failure to ask defendant exactly what sexual act would suffice to "gethis nut off" fatal to the State's case. Officer Kramp testified to her understanding,based on the words defendant used to solicit her, that he intended sexualintercourse/penetration/ejaculation. Defendant's words must be taken in context(People v. Gemeny, 313 Ill. App. 3d 902, 913, 731 N.E.2d 844, 853 (2000)) and hissubsequent questions to Officer Kramp regarding whether she had a condom and wasmore than 17 years of age reinforce that he intended sexual intercourse of some sort inexchange for the proffered money. Given the court's credibility finding, we find theevidence supports the court's determination that defendant is guilty beyond areasonable doubt and the court did not err in denying defendant's motion for a newtrial.

Moreover, although "every material allegation in the indictment must be provedbeyond a reasonable doubt" in order to convict a defendant, "an immaterial allegationneed not be so proved. An averment is material when it is essential to the crime orcause of action and cannot be stricken from the indictment or complaint without leavingit insufficient." People v. Taranto, 2 Ill. 2d 476, 482, 119 N.E.2d 221 (1954). Clearlythe averment that defendant solicited sexual penetration is the essential element of theoffense here. If the phrase "sexual intercourse" were stricken from the complaint, theremaining language would still clearly state the required statutory elements. The typeof sexual penetration is entirely immaterial to the sufficiency of the charge and,therefore, the phrase "sexual intercourse" is mere surplusage and need not be proven. As long as solicitation of sexual penetration of some sort is proven beyond areasonable doubt, the proof conforms to the charge.

For the reasons stated above, we affirm the decision of the trial court.

Affirmed.

HOFFMAN, P.J., and SOUTH, J., concur.

1. Section 11-15(a)(1) provides that any person who solicits another for thepurpose of prostitution commits "soliciting for a prostitute." 720 ILCS 5/11-15(a)(1)(West 2002). This section "covers only 'middlemen' who solicit customers for theprostitute and not the prospective customers or the prostitute" (People v. Jones, 245 Ill.App. 3d 810, 813, 615 N.E.2d 391, 393 (1993)) and was clearly the wrong sectionunder which to charge defendant.

2. During the sentencing hearing, the State was prepared to present thetestimony of IAD Sergeant Koconis that there was no such investigation.

3. Section 12-12(f) defines "sexual penetration" as

"any contact, however slight, between the sex organ or anus of oneperson by an object, the sex organ, mouth or anus of another person, or anyintrusion, however slight, of any part of the body of one person or of any animalor object into the sex organ or anus of another person, including but not limitedto cunnilingus, fellatio or anal penetration. Evidence of emission of semen is notrequired to prove sexual penetration." 720 ILCS 5/12-12(f) (West 2002).