Find Legal Information

After a bench trial, defendant, Frederick Arndt, was found guilty of two counts of indecentsolicitation of a child under section 11--6 of the Criminal Code of 1961 (Code) (720 ILCS 5/11--6(West 2002)). The trial court sentenced him to 30 months of probation with various conditions. Onappeal, defendant argues that (1) he was not proven guilty beyond a reasonable doubt; (2) he wasentrapped; (3) a fatal variance existed between the indictment and the proof at trial; and (4) section11--6 violates the first amendment. We affirm.

On April 10, 2002, defendant was charged by indictment with two counts of indecentsolicitation of a child. Both counts alleged that, between August 1, 2001, and March 10, 2002,defendant "knowingly solicited a child he believed to be under the age of 17, to do an act of sexualpenetration which if done would have been Aggravated Criminal Sexual Abuse." At trial, the Statepresented five exhibits that defendant stipulated were admissible.

Exhibit No. 1 consisted of the stipulated testimony of Detective Mark Pleasant, aninvestigator with the Lake County State's Attorney's office who was assigned to the Lake CountyChildren's Advocacy Center. As reflected in his reports, Pleasant signed onto America Online (AOL)using several fictitious profiles of teenage girls under different screen names. Beginning in August2001, Pleasant had several Internet contacts with defendant, who used the screen name"ARhino6575."

On August 9, 2001, Pleasant had an instant message conversation with defendant while usingthe screen name "Kristin15IL." Kristin15IL's online profile stated that she was a 15-year-old femalefrom Waukegan. Defendant began the conversation by asking whether she liked older guys. Kristin15IL informed defendant that she was 15 years old and defendant represented that he was 28. During the course of their conversation, defendant repeatedly asked her what she liked to "do" withguys and whether she used birth control pills and condoms.

On September 13, 2001, under the screen name "GirlinIL," Pleasant entered a chat roomcalled "Places-Chicago." GirlinIL's online profile stated that she was a 15-year-old female from LakeCounty named Loren. Although Pleasant did not engage in any conversation in the chat room,GirlinIL received a message from defendant later that day. During the instant message conversation,defendant asked GirlinIL whether she liked older men. Defendant represented that he was 34 yearsold; GirlinIL responded that she was 15. Defendant asked GirlinIL what she looked like and whethershe liked "to be with older men" sexually. Defendant also asked for details of her previous sexualexperiences and whether she was taking birth control pills. Defendant asked if she would like himto "pull out" before ejaculating and suggested that she perform oral sex on him.

In addition, defendant inquired whether GirlinIL would like to meet an older man, althoughhe stated that he would keep their relationship secret because of their ages. Defendant indicated thatpeople would think they "were father and daughter or relatives." Defendant informed her that heliked to date younger women because he could teach them what a man "likes in bed." He furtherinformed her that he had met a 16-year-old girl online and that they had had sex. Defendant askedGirlinIL where she lived and where and when they could meet. GirlinIL responded that she was deafand tutored at home. As a result, she could meet him or chat with him only when her mother was atwork and her tutor was not present. Pleasant then sent defendant a picture of GirlinIL, which wasactually a picture of a female Lake County deputy when she was 15 years old. At the end of theirconversation, defendant asked GirlinIL if she would let him know when she would be ready to havea baby with him. She responded that she was only 15 years old, that defendant was playing a "bigjoke" on her, and that she was hurt and "pissed." GirlinIL signed off.

On September 21, 2001, Pleasant received a one-line message from defendant after enteringa chat room under the screen name of "Kaytea847." Kaytea847's profile stated that she was a 14-year-old female from Waukegan. However, Pleasant, posing as Kaytea847, never replied.

In January 2002, GirlinIL sent defendant an instant message indicating that he was on her"buddy list," but she could not remember why. Defendant responded that they had talked a few timesbefore and that she liked older men. GirlinIL indicated that she had just turned 16 years old, althoughshe did not have a driver's license. Defendant stated that he was 44 years old. Defendant then askedif she wanted to meet at her house and what she would like to do with him when they met. GirlinILresponded, "[I] mean we said we liked each other and im [sic] prety [sic] sure we probly [sic] saidwe wanted to [you] kno [sic] like have sex." Defendant also asked whether she was taking birthcontrol pills, stated that it "would be cool" if she were not, and asked whether she would stop takingthem for the "right man."

Between January and March 2002, GirlinIL and defendant exchanged e-mails and hadnumerous instant message conversations. During this time, GirlinIL repeatedly indicated to defendantthat she did not want her mother to catch her talking to him or meeting with him. In addition, sheoften referred to her school obligations and schedule. They discussed meeting at a local shoppingmall, although GirlinIL stated that she could not meet on a school night. GirlinIL indicated that shecould tell her mother that she was meeting friends at the mall and then have her mother drop her offand pick her up.

Defendant and GirlinIL eventually agreed to meet at the mall, near entrance J, on Saturday,February 23, 2002. Defendant asked her what she would like to do when they met, and GirlinILreplied that, if they liked each other, they could hang out and "mess around." Defendant asked if shewas menstruating and taking birth control pills. GirlinIL responded that she was taking birth controlpills but did not have her period at that time. Defendant then cancelled the February 23 meeting,stating that there was an emergency concerning his daughter.

After a series of e-mails, defendant and GirlinIL arranged another meeting at the samelocation at the mall on March 8, 2002. Defendant stated that he wanted to make "passionate love"to her and that they could go to a motel. Defendant also asked GirlinIL when she was scheduled toget her period and whether she took birth control pills during that time. He again referred to havinga baby with her, telling her that he always wanted to "cum" inside of her, even if she were not takingbirth control pills.

Defendant told GirlinIL to wear "something sexy" and that he would be wearing blue jeans,a black button-down shirt, a black leather jacket, and glasses. According to Pleasant's report,surveillance was set up at the mall on March 8. At 12:20 p.m., a man matching defendant'sdescription entered the mall at entrance J. When asked his name, defendant replied, "Fred Arndt." Defendant was then placed under arrest and informed of his Miranda rights.

When questioned, defendant initially responded that he was at the mall to do some shopping. Then, he admitted that he was there to meet a girl named Loren, whom he had met online under thescreen name "GirlinIL." Defendant stated that he had met GirlinIL in a chat room called "I LikeOlder Men" and that she was 18 years old. Since she had told him that she was 18, he assumed thatshe went to college. Defendant denied that GirlinIL had sent him a picture.

Defendant admitted that he and GirlinIL had talked about sex, but stated that he did not intendto have sex with her after their meeting. Instead, he planned to meet her, look at her driver's licenseto make sure that she was 18 years old, and then "go from there." According to defendant, it was"possible" that they would have had sex, if they liked each other. GirlinIL had indicated that sex"might happen," but defendant had not really thought about it. Defendant decided to go to the mallto do some shopping and see what she looked like.

Pleasant confronted defendant with the fact that he, posing as GirlinIL, had told defendantthat Loren was age 15 or 16. Defendant replied that he thought she was lying about her age, sincea lot of girls misrepresented themselves online. However, there was nothing specific in theircommunications that made him think that she was lying. Defendant stated that he was serious abouthaving a baby with GirlinIL, but he would have had sex with her only if she were over 18.

According to defendant, he lied when he told GirlinIL that he had had sex with a 16-year-oldgirl whom he had met online. However, he admitted talking about sex online with other femalesunder the age of 17. In particular, he had corresponded with a girl using the screen name"Ohiokid14," but defendant thought that she might have been lying about her age.

Pleasant showed defendant copies of the communications he had with GirlinIL, Kristin15IL,and Kaytea847, as well as copies of their profiles. Defendant admitted having instant messageconversations with Kristin15IL and Kaytea847, but denied seeing their profiles. Defendant admittedreading the profile for GirlinIL, but he did not recall meeting her in the Places-Chicago chat room. Although he had exchanged e-mails and instant messages with her, he did not remember receiving thepicture of her.

Police found in defendant's coat pocket a blue diamond-shaped pill that he claimed was coldmedicine. Defendant subsequently admitted that it was Viagra, for which he had received aprescription the previous week.

Defendant asked Pleasant whether he could get an attorney and "just plead guilty." He thenprovided a written statement indicating the following. Although GirlinIL claimed to be 15, defendantbelieved that she was actually 18. At the mall, he thought that they would "just meet and talk." Defendant would have requested proof that she was 18, and if she were underage, he would havewalked away. In the statement, defendant repeatedly indicated that they would not have had sexunless she were at least 18 years old. Police obtained from the mall a security videotape of defendantthat was entered into evidence as stipulated exhibit No. 5.

Exhibit No. 2 contained stipulated documents from AOL, detailing the ownership and activityof defendant's account under the screen name ARhino6575. Defendant's AOL "buddy list" includedthe screen names "Ohiokid14," "tammyzxoxox," and "GirlinIL." The online profiles for Ohiokid14and tammyzxoxox indicated that they were ages 14 and 15, respectively.

Exhibit No. 4 consisted of the stipulated testimony of Paul Swander, a police officer assignedto child sex cases with the Van West County sheriff's police in Ohio. Using the screen nameOhiokid14, whose online profile stated that she was a 14-year-old female, Swander had severalInternet communications with defendant in November and December 2001. During the course oftheir communications, defendant asked Ohiokid14 if she would like to meet an older man and loseher virginity to an older man. Defendant also asked about her previous sexual experiences, whethershe was taking birth control pills, whether she would like to have a baby with him, and whether shewould keep the baby if she became pregnant. Defendant asked Ohiokid14 when she last menstruated,and then responded, "[C]ool then [you] might be ovulating when [I] get there to see [you]." Further,defendant told her that she would have three babies before she was 18 and that she would have toraise them until she was 18. Defendant also asked Ohiokid14 if she would like to spend the weekendwith him and if she would like him to get her friends pregnant while she watched. Defendant wantedto know when they could meet and how Ohiokid14 could arrange a meeting since she lived with hergrandmother. Ohiokid14 then provided defendant with her voice pager number and he left her a fewmessages.

In addition, Swander had Internet communications with defendant while using the screenname tammyzxoxox, whose online profile stated that she was a 15-year-old female. During an instantmessage conversation with tammyzxoxox in December 2001, defendant asked whether she liked oldermen, whether she was taking birth control pills, and what she liked to do with men. He also askedabout her previous sexual experiences and described his own. Defendant stated that he had had sexwith a 19-year-old girl but wanted to be with someone younger. He asked tammyzxoxox if any ofher friends had become pregnant after having sex with an older man. In February and March 2002,defendant asked if she wanted to meet him at a shopping mall.

Defendant testified that he was 45 years old, divorced, and had two grown children. Althoughhe had conversations in a chat room with GirlinIL, he did not initiate any of the conversations. According to defendant, he did not know the age of GirlinIL, but he communicated with her in a chatroom that was for individuals over the age of 18. Based on the photograph, he could not tell her age,but he assumed that she was over 18.

Defendant admitted that GirlinIL stated that she was age 15 or 16. However, based on hisexperience on the Internet, he did not believe that either was her true age. Defendant hadmisrepresented his age on the Internet and other users had misrepresented their ages to him. Defendant presumed that GirlinIL was 18 or older and he did not believe that the photograph sentwas actually of her. Defendant admitted having conversations with GirlinIL about having a baby,birth control pills, and her period. According to defendant, he had never taken Viagra prior to hisarrest, but had one in his pocket because he was going to meet his girlfriend after going to the mall. Defendant testified that GirlinIL invited him to meet her at the mall. On the first occasion,he did not go because he did not want to meet anyone. Defendant went to the mall the next time togo shopping, although he had no specific store in mind. Defendant agreed to meet GirlinIL at the icerink and, after entering the mall, walked quickly to that location to look for her. If she appeared tobe underage, he would have walked away.

The trial court found defendant guilty of both counts of indecent solicitation of a child. According to the court, defendant's conversations indicated a fixation with ages and attempts to lureunderage girls into sexual relationships with him. The court considered defendant's conversationswith girls other than GirlinIL as evidence of his plan, design, motive, intent, or lack of mistake.

Defendant filed a motion for a new trial, which the trial court denied. In sentencing defendant,the court found defendant's talk of impregnating underage girls particularly troubling. The trial courtsentenced defendant to 30 months' probation with several conditions, including 12 months of periodicimprisonment, no contact with children under the age of 18, sex offender treatment, no Internetaccess except for employment purposes, and 200 hours of community service. Defendant's timelynotice of appeal followed.

Defendant's first argument on appeal is that the State failed to prove him guilty beyond areasonable doubt of indecent solicitation of a child. When reviewing a challenge to the sufficiencyof the evidence, we consider whether, after viewing the evidence in the light most favorable to theprosecution, any rational trier of fact could have found the essential elements of the crime beyond areasonable doubt. People v. Collins, 106 Ill. 2d 237, 261 (1985). We note that this standard ofreview applies equally to bench trials. People v. Patterson, 314 Ill. App. 3d 962, 969 (2000). Inapplying this standard, our role is not to retry the defendant. Patterson, 314 Ill. App. 3d at 969. Instead, the trier of fact determines the weight to be given to the testimony of the witnesses, thewitnesses' credibility, and the reasonable inferences to be drawn from the evidence. Patterson, 314Ill. App. 3d at 969.

A person commits the offense of indecent solicitation of a child "if the person, with the intentthat the offense of *** aggravated criminal sexual abuse be committed, knowingly solicits a child orone whom he or she believes to be a child to perform an act of sexual penetration or sexual conductas defined in Section 12--12 of this Code." 720 ILCS 5/11--6(a) (West 2002). " 'Solicit' means tocommand, authorize, urge, incite, request, or advise another to perform an act by any meansincluding, but not limited to, in person, over the phone, in writing, by computer, or by advertisementof any kind." 720 ILCS 5/11--6(b) (West 2002). A "child" is "a person under 17 years of age." 720ILCS 5/11--6(b) (West 2002).

Defendant first contends that the State failed to prove that he "knowingly solicited a child hebelieved to be under the age of 17." Specifically, defendant contends that all of his onlineconversations with Pleasant, posing as GirlinIL, took place in chat rooms designated for persons overthe age of 18. According to defendant, communication in an "over-age-18" chat room negates theintent to solicit a minor. Because people role-play on the Internet and misrepresent their ages,defendant believed that he was communicating with an adult pretending to be under the age of 17. Defendant thus concludes that he did not travel to the mall to meet a child, but expected to meet anadult. We disagree.

The specific intent required to prove the elements of the offense of solicitation may be inferredfrom the surrounding circumstances and the acts of the defendant. People v. Ruppenthal, 331 Ill.App. 3d 916, 920 (2002). The trier of fact makes the factual determination regarding a defendant'sintent, and we will not disturb that determination unless the evidence is so improbable that it raisesa reasonable doubt about the defendant's guilt. Patterson, 314 Ill. App. 3d at 969.

The evidence supports the trial court's finding that defendant believed GirlinIL to be underthe age of 17. The transcripts of their conversations make clear that GirlinIL informed defendantseveral times that she was only 15 or 16 years old. Additionally, her profile stated that she was only15 years old. Defendant admitted that he read GirlinIL's profile and that she represented herself tobe age 15 or 16. Further, GirlinIL's communication with defendant was consistent with that of anunderage girl. Over the course of their conversations, she repeatedly told defendant that she did notwant her mother or her tutor to catch her talking to him or meeting with him. She often referred toher school obligations and schedule, did not want to meet on a "school night," and did not have adriver's license. In fact, defendant admitted that nothing specific in their communications made himthink that she was lying about her age. Rather, he communicated that he would keep theirrelationship "secret" because of their ages, and that people would think that they were "father anddaughter or relatives." Defendant also told GirlinIL that he had had sexual intercourse with a 16-year-old girl whom he had met online.

In addition, defendant's other Internet conversations with detectives posing as 14-year-old and15-year old females reveal an intent to solicit underage girls for sexual encounters. Defendant sentmessages to Katea847, a 14 year-old-female; Kristin15IL, a 15-year-old female; Ohiokid14, a 14-year-old female; and tammyzxoxox, a 15-year-old female. In particular, defendant told tammyzxoxoxthat he had had sexual intercourse with a 19-year-old girl but wanted to be with someone younger.As the trial court noted, all of these conversations indicate a fixation with ages and attempts to lureunderage girls into sexual relationships with him. Thus, there was ample evidence to support thefinding that defendant believed GirlinIL to be under the age of 17.

Defendant also argues that the State failed to show that he intended to engage in an act ofsexual penetration with GirlinIL. Defendant asserts that there was no discussion of sexual activityrelated to his meeting with GirlinIL. Further, he asserts that proof of his intent to engage in sexualpenetration with a child was lacking because he did not, in fact, meet a child, and because he said hewould have walked away if GirlinIL appeared underage. We reject this argument.

There was sufficient evidence to show that defendant intended to engage in an act of sexualpenetration with GirlinIL. Contrary to defendant's assertion, sexual matters were discussed in directrelation to their meeting. For example, defendant communicated that he wanted to make "passionatelove" to GirlinIL and that they could go to a motel. He again referred to having a baby with her andstated that he always wanted to "cum" inside of her, even if she were not taking birth control pills. Further, with a Viagra tablet in his pocket, defendant arrived at the agreed-upon place, at the agreed-upon time, wearing the clothing that he had described. See Patterson, 314 Ill. App. 3d at 969-70(defendant possessed specific intent to commit the offense of aggravated criminal sexual abuse byoffering online to perform oral sex that day, arriving at the agreed-upon place, at the agreed-upontime, and wearing the clothing he had informed the minor he would be wearing). Accordingly, therewas no requirement that defendant actually meet a child, since defendant demonstrated his intent tocommit the sexual acts discussed by traveling to the mall to meet GirlinIL. See Ruppenthal, 331 Ill.App. 3d at 920 (defendant's trip to Illinois for the admitted purpose of meeting a girl he knew to be"about 15" exhibited his intent to engage in the sexual activity discussed on the Internet).

Moreover, as stated earlier, defendant's online conversations with Kristin15IL, Ohiokid14,and tammyzxoxox were similar to his conversations with GirlinIL. Defendant asked these "underagegirls" if they liked "older guys," if they used birth control, and about their sexual experiences. Additionally, he specifically expressed a desire to meet with Ohiokid14 and tammyzxoxox. Giventhis pattern of behavior, defendant's conversations with GirlinIL, and his trip to the mall to meet her,there was sufficient evidence to support his conviction of indecent solicitation of a child.

Defendant next contends that the State failed to prove beyond a reasonable doubt that he wasnot entrapped. According to defendant, his conduct was incited and induced by Pleasant, whoentered an "adult-only" chat room and pretended to be an adult role-player. Defendant contends thathis conversations with GirlinIL would have ended on September 21, 2001, if Pleasant had notinitiated contact with him nearly five months later (on January 30, 2002). In defendant's view,Pleasant first brought up the subject of sex, initiated the contacts on February 13 and 26, andindicated a willingness to meet him after he cancelled the first meeting. For these reasons, defendantconcludes that he was not predisposed to commit the offense.

The State counters that the defense of entrapment was not available to defendant because hedid not admit the essential elements of the offense. Specifically, defendant denied any knowledge orbelief that GirlinIL was under the age of 17, and he denied that he intended to commit an act of sexualpenetration with her if she appeared underage at the mall. In the alternative, the State argues that,if defendant properly raised the defense of entrapment, he was predisposed to commit the offense.

Once an accused presents even slight evidence of entrapment, the State must prove theabsence of entrapment beyond a reasonable doubt. People v. White, 249 Ill. App. 3d 57, 63 (1993). A defendant who raises entrapment as an affirmative defense necessarily admits to committing thecrime, albeit because of improper governmental inducement. People v. Rivas, 302 Ill. App. 3d 421,432 (1998). This is because it would be both factually and legally inconsistent for a defendant to denycommitting the offense and then to assert as a defense that he committed the offense because ofincitement or inducement by authorities. People v. Gillespie, 136 Ill. 2d 496, 501 (1990). Thus, theentrapment defense is not available to a defendant who denies any of the facts constituting the offensecharged, including the requisite mental state. People v. Cooper, 239 Ill. App. 3d 336, 349 (1992). Nevertheless, "this does not mean that a defendant who wishes to rely on the entrapment defensecannot plead not guilty and force the State to its proof on all the elements of the offense." Cooper,239 Ill. App. 3d at 349. The question, as framed by the Appellate Court, Fifth District, is whatconstitutes a sufficient admission of commission of the offense to allow reliance upon the entrapmentdefense. Cooper, 239 Ill. App. 3d at 349-50.

In this case, defendant asserted during discovery an intention to raise the entrapment defense. In addition, defendant presented "slight evidence" of entrapment at trial by testifying that he did notinitiate the Internet communications with GirlinIL and that she invited him to meet her at the mall.However, as the State points out, defense counsel appeared to abandon this defense by failing toargue entrapment in the opening statement, in the motion for a directed finding, or in the closingargument. As a result, the trial court did not make any express finding with respect to entrapment. More important, we agree with the State that defendant failed to admit essential elements of theoffense by denying that he (1) knew or believed GirlinIL to be under the age of 17; and (2) intendedto engage in sexual conduct with her. Based on the above, the defense of entrapment is unavailableto defendant. Nevertheless, even if, arguendo, defendant had properly raised the defense ofentrapment, we would reject his argument.

In order to establish entrapment, the evidence must show (1) that the State improperlyinduced the defendant to commit the crime; and (2) a lack of predisposition to commit the crime onthe part of the defendant. People v. Watycha, 272 Ill. App. 3d 774, 780 (1995). The entrapmentdefense is unavailable where the State has merely provided the defendant an opportunity to committhe crime. Watycha, 272 Ill. App. 3d at 780. For this reason, the defendant's predisposition isgenerally the critical inquiry, and the State must show that the defendant was ready and willing tocommit the crime in the absence of any persuasion by the State. Watycha, 272 Ill. App. 3d at 780-81. Defendant's assertions that Pleasant initiated contact, discussions of sex, and a meeting arenot supported by the record. In September 2001, Pleasant, posing as GirlinIL, entered a chat roombut did not engage in conversation. Later that day, defendant contacted GirlinIL and asked if sheliked older men. Thus, the first contact was initiated by defendant. Further, defendant first raisedthe subject of sex during that conversation by asking GirlinIL about her previous sexual experiences,whether she liked to be with older men sexually, and whether she was taking birth control pills. Defendant asked GirlinIL if she wanted him to "pull out" if they were together, and he suggested oralsex. In addition, he asked where she lived, and when and where they could meet. GirlinIL thensigned off when defendant asked when she would be ready to have a baby with him.

Defendant's predisposition to commit the offense is further evidenced by his Internetcommunications with Kristin15IL, tammyzxoxox, and Ohiokid14. For instance, in November andDecember 2001, defendant had several conversations with Ohiokid14, represented to be age 14, inwhich he asked if she would like to lose her virginity to an older man. Defendant asked about herprevious sexual experiences, whether she was taking birth control pills, and whether she would liketo have a baby with him. Defendant also asked Ohiokid14 if she would like to spend the weekendwith him, wanting to know when and how they could meet since she lived with her grandmother. Defendant engaged in similar conversations with Kristin15IL and tammyzxoxox, both representedto be age 15. In particular, defendant suggested meeting tammyzxoxox at a shopping mall. Basedon this evidence, we conclude that defendant was ready and willing to commit the offense in theabsence of any persuasion from the State. Consequently, the fact that Pleasant reinitiated contactwith defendant in January and February 2002 merely provided defendant with the opportunity tocommit the crime, and defendant was not entrapped.

Defendant next contends that there was a fatal variance between the indictment and the proofat trial. Both counts of the indictment alleged that defendant "committed the offense of indecentsolicitation of a child, in that said defendant a person of 17 years of age and upwards, knowinglysolicited a child he believed to be under the age of 17, to do an act of sexual penetration." Althoughdefendant objected to the indictment at trial on the basis that there was no evidence that an actualchild was involved in the offense, the trial court rejected this argument. Specifically, defendantcontends that there is a variance between the charge that he "knowingly solicited a child he believedto be under the age of 17," and the proof that he was communicating with an adult. According todefendant, the indictment should have tracked the language of the statute, which provides that aperson commits the offense of indecent solicitation of a child when he solicits a "child or one whomhe or she believes to be a child." 720 ILCS 5/11--6 (West 2002). The State counters that novariance existed or, in the alternative, that any variance was not fatal.

We consider the plain and ordinary meaning of the language in the indictment as read andinterpreted by a reasonable person. People v. Terry, 342 Ill. App. 3d 863, 868 (2003). A charginginstrument is to be read as a whole, and where a statute is cited in a count, the statute and count areto be read together. People v. Hoffman, 146 Ill. App. 3d 823, 833 (1986). To be fatal, a variancebetween the charging instrument and the proof at trial must be material and of such character that itmisleads the accused in making his defense or exposes him to double jeopardy. People v. Pergeson,347 Ill. App. 3d 991, 994 (2004).

We conclude that any variance between the indictment and the proof at trial was neithermaterial nor prejudicial to defendant. The ordinary meaning of the language of the indictment,considered with the language in section 11--6, demonstrates that defendant was charged withsoliciting "someone" he believed to be under the age of 17. In Ruppenthal, the court noted that thestatus of the person solicited is not an element of the crime of solicitation (Ruppenthal, 331 Ill. App.3d at 920 n.2), because the culpable act defined by the statute is the defendant's belief that he wasspeaking to a minor. Ruppenthal, 331 Ill. App. 3d at 920. Accordingly, in reading the language inthe count and the statute together, we determine that the indictment's reference to a "child he believedto be under the age of 17," rather than "one whom he believed to be a child," was not material.

In addition, any variance was not of such a character that it misled defendant in preparing hisdefense. Although defendant makes a general claim that he was prejudiced in preparing his defense,he does not explain how he was prejudiced, and we find no evidence to support his claim. At the timeof his arrest, defendant was informed that his Internet communications had been with Pleasant, ratherthan an actual teenage girl. Further, during discovery, defendant was provided with Pleasant'sreports, which detailed the communications between defendant and Pleasant, posing as variousunderage girls. Defense counsel's arguments before and during trial indicate that defendant wasaware that the charges against him were based on his communications with an undercover officerrather than a child. Specifically, defendant's defense focused on whether he believed GirlinIL to beunder the age of 17 and whether, when he arrived at the mall, he intended to commit an act of sexualpenetration. Thus, we do not believe that the indictment misled defendant in preparing his defense;nor do we believe that he would have prepared his defense any differently had the indictment trackedthe actual language of the statute.

Moreover, defendant is not exposed to the possibility of double jeopardy. The indictment setout the charged offense, as well as the time period during which the offense was alleged to haveoccurred. If any future prosecution were attempted, prior prosecution on the same facts could beproved by resort to the record. See People v. Ramos, 316 Ill. App. 3d 18, 25 (2000).

In reaching this conclusion, we note that defendant's reliance on People v. Durdin, 312 Ill.App. 3d 4 (2000), is misplaced. In Durdin, the defendant was convicted of delivering cocaine within1,000 feet of a school, although the parties stipulated that the controlled substance at issue washeroin. Durdin, 312 Ill. App. 3d at 7. The appellate court reversed the defendant's conviction, notingthat the State had confessed error and that the defendant had been convicted of the wrong crime. Durdin, 312 Ill. App. 3d at 6, 8. Unlike Durdin, defendant here was not convicted of the wrongcrime, and the State did not confess error. Additionally, the court in Durdin noted that, in People v.Santiago, 279 Ill. App. 3d 749 (1996), it had affirmed an armed robbery conviction even though theindictment and the proof at trial varied as to the victim's name. Despite the misidentification of thevictim, the court in Santiago held that the variance in the information was not fatal to the convictionbecause the defendant did not sustain any prejudice, the mistake did not affect his defense, and doublejeopardy prevented the defendant from being subjected to a second trial. Santiago, 279 Ill. App. 3dat 753. We reach the same result here; any variance in the indictment and the proof at trial does notwarrant the reversal of defendant's convictions.

Defendant's final argument on appeal is that section 11--6 is facially overbroad because itreaches speech protected by the first amendment. According to defendant, the statute not onlyprohibits adults from soliciting children, but it also proscribes role-playing, which is lawful betweenconsenting adults. Because "perfectly legal activity is swept into the activity proscribed" by thestatute, defendant concludes that it results in an unnecessary chilling of the free-speech rights ofadults.

Generally, a party does not have standing to assert the rights of others not before the court;however, the overbreadth doctrine is an exception to the general rule. City of Harvard v. Gaut, 277Ill. App. 3d 1, 5 (1996). The potential chilling effect on the protected activities of others allows adefendant who is prosecuted for speech or expressive conduct to challenge a law on its face, even ifhis activities are not protected by the first amendment. City of Harvard, 277 Ill. App. 3d at 5-6. A statute is presumed constitutional, and we must resolve any doubt in favor of the statute. People v. Hill, 333 Ill. App. 3d 783, 785 (2002). Our review is de novo. Hill, 333 Ill. App. 3d at785. In determining whether a statute is overbroad, the overbreadth must be substantial before astatute regulating conduct will be invalidated on its face. People v. Smith, 347 Ill. App. 3d 446, 449(2004). A statute regulating conduct is overbroad if it: (1) criminalizes a substantial amount ofprotected behavior, relative to the law's plainly legitimate sweep; and (2) is not susceptible to alimiting construction that avoids constitutional problems. Hill, 333 Ill. App. 3d at 786. Our first taskis to determine whether the statute reaches constitutionally protected conduct. People v. Bailey, 167Ill. 2d 210, 226 (1995).

Our research reveals two Illinois cases that have addressed first amendment challenges tosection 11--6. In Ruppenthal, 331 Ill. App. 3d at 920, the defendant communicated over the Internetwith a detective posing as "Stacy," a 14-year-old girl, and then traveled to an airport to meet her inorder to "rub her chest and vagina." The court considered whether the substance of the defendant'sonline conversation with Stacy was protected by the first amendment. In rejecting the defendant'sclaim, the court held that the element of criminal intent " 'transforms mere recitation of "loose" wordswhich may mandate first amendment protection into the offense of solicitation.' " Ruppenthal, 331Ill. App. 3d at 920, quoting People v. Lewis, 84 Ill. App. 3d 556, 561 (1980). Noting that it wouldbe impossible for the act of solicitation to occur without the exchange of words between the offenderand the victim, the court concluded that the defendant's discussions with "children or those hebelieve[d] to be children" regarding sexual activity did not rise to the level of constitutionallyprotected speech. Ruppenthal, 331 Ill. App. 3d at 920. In other words, " '[w]here speech is anintegral part of unlawful conduct, it has no constitutional protection.' " Bailey, 167 Ill. 2d at 227,quoting Chicago Real Estate Board v. City of Chicago, 36 Ill. 2d 530, 552-53 (1967). More recently, in Smith, 347 Ill. App. 3d 446, the Appellate Court, Third District, specificallyheld that section 11--6 is not unconstitutionally overbroad and thus does not infringe on the firstamendment right to freedom of speech. There, the defendant communicated over the Internet witha detective he believed to a 15-year-old boy, and the two agreed to meet at a store for the purposeof engaging in oral sex. Smith, 347 Ill. App. 3d at 448. On appeal, the defendant did not challengethe statute as applied to him, but argued that a person age 17 or older would be engaging inconstitutionally protected speech if he or she asked a 16-year-old spouse for an act of sexualpenetration, yet that person could be prosecuted for indecent solicitation of a child because there isno exception for married people. Smith, 347 Ill. App. 3d at 449. The court rejected the defendant'sclaim, holding that the legitimate goal of the statute far surpassed any potential unlawful applications. Smith, 347 Ill. App. 3d at 450. Recognizing that the prevention of sexual exploitation and abuse ofchildren constitutes a government objective of surpassing importance, the court concluded that theoccasions upon which the State would seek to enforce the statute with regard to the hypotheticalpresented by the defendant would be exceedingly rare. Smith, 347 Ill. App. 3d at 450. Further, thecourt reasoned that courts could consider the constitutionality of the statute as applied to a marriedcouple on a case-by-case basis and that any flaw in section 11--6 of the Code was not of substantialconcern when viewed in the context of the statute as a whole. Smith, 347 Ill. App. 3d at 450.

Here, defendant relies on Ashcroft v. Free Speech Coalition, 535 U.S. 234, 152 L. Ed. 2d403, 122 S. Ct. 1389 (2002), to support his argument that section 11--6 is overbroad. According todefendant, section 11--6 unnecessarily bars speech (in the form of role-playing) between consentingadults that is protected by the first amendment. Defendant contends that he was "within his rightsunder the first amendment to engage in speech with another adult, including an adult person who mayparade as a child in an adult chat room." Additionally, he asserts that the link between adult chatroom conversations concerning adult-child sexual activity and actual solicitation of a child is"contingent and indirect." Defendant argues that section 11--6 goes well beyond prohibiting illegalconduct, by restricting the speech available to law-abiding adults. We disagree.

In Ashcroft, the court declared unconstitutionally overbroad two provisions of the ChildPornography Prevention Act of 1996 (CPPA) (18 U.S.C.