                             2018 IL App (2d) 170048 

                                  No. 2-17-0048

                           Opinion filed March 23, 2018 

______________________________________________________________________________

                                             IN THE


                               APPELLATE COURT OF ILLINOIS


                              SECOND DISTRICT

______________________________________________________________________________

THE PEOPLE OF THE STATE                ) Appeal from the Circuit Court
OF ILLINOIS,                           ) of Kane County.
                                       )
      Plaintiff-Appellee,	             )
                                       )
v. 	                                   ) No. 14-CF-2119
                                       )
ERIC F. ZIEMBA,                        ) Honorable
                                       ) Donald M. Tegeler,

      Defendant-Appellant.             ) Judge, Presiding.

______________________________________________________________________________

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

                                            OPINION

¶1        Following a bench trial, defendant, Eric F. Ziemba, was found guilty of involuntary

sexual servitude of a minor (720 ILCS 5/10-9(c)(2) (West 2014)), traveling to meet a minor (id.

§ 11-26(a)), and grooming (id. § 11-25(a)). On appeal, defendant contends that (1) the evidence

was insufficient to prove him guilty beyond a reasonable doubt of involuntary sexual servitude of

a minor and (2) the trial court erroneously admitted certain text messages into evidence. We

affirm.

¶2                                      I. BACKGROUND
2018 IL App (2d) 170048


¶3     On December 2, 2014, the following advertisement was placed online by an officer from

the Aurora Police Department as part of an undercover sting operation conducted with the

assistance of special agents from the United States Department of Homeland Security (DHS):

       “*******Sweet and juicy cHERRY waiting to be picked**** - 18

       Its sooooo cold!!!! Come warm up with a very young and eager co-ed waiting to please

       and fulfill your every desire. I’m a sexy brunette down for what ever you please. Text at

       [number omitted]. Gentlemen only..I;m [sic] waiting for you. Available all day..$150/h..

       100/hh

       Poster’s age: 18”

¶4     Defendant responded to the advertisement via text message, unaware that he was

communicating with Sergeant Alfredo Dean of the Aurora Police Department. The following is

the text exchange that occurred between defendant and Dean:

                “[DEFENDANT]: Where are you located? Are you a cop?

                [DEAN]: near sugar grove and no

                [DEFENDANT]: No far. Oswego here

                [DEAN]: what r u lookin 4

                [DEFENDANT]: What do u offer

                [DEAN]: my girls will do what i tell them

                [DEFENDANT]: Your girls? So who am I talking to?

                [DEAN]: mom

                [DEFENDANT]: Ah so are these your daughters?

                [DEAN]: yes




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             [DEFENDANT]: How old are they? I just want to be sure I am not getting

      scammed here

             [DEAN]: 14 yr and 15 yr

             [DEAN]: no scam just xtra x mas $$$

             [DEFENDANT]: Your post said 18

             [DEFENDANT]: Do you do things?

             [DEAN]: I know no just teaching 2day

             [DEFENDANT]: Ok.

             [DEFENDANT]: Where would this happen?

             [DEFENDANT]: ?

             [DEAN]: hotel

             [DEFENDANT]: In sugar grove?

             [DEFENDANT]: Are you interested?

             [DEAN]: are u? we r ready

             [DEFENDANT]: I am. Will you be in the room?

             [DEAN]: i will leave and return once time is up

             [DEFENDANT]: Can I see a pic of who I would see? I feel a little nervous about

      this. Could be a trap

             [DEAN]: no trap pics posted r real

             [DEFENDANT]: There is only one

             [DEAN]: i know its real

             [DEFENDANT]: What is the rate?

             [DEAN]: i know its real



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2018 IL App (2d) 170048


              [DEAN]: 100 hh 150 h

              [DEFENDANT]: You said that already. What is the rate??

              [DEFENDANT]: Oh ok

              [DEFENDANT]: What are they able to do!

              [DEAN]: 100 hh 150 hh

              [DEAN]: anything i tell them to do

              [DEFENDANT]: Even each other?

              [DEAN]: upcharge each other

              [DEFENDANT]: What is that?

              [DEAN]: xtra $$ for their show

              [DEFENDANT]: I know. Amount

              [DEAN]: $50

              [DEFENDANT]: Ok. So where would I have to go?

              [DEAN]: we are near 88/orchard text when ur near

              [DEFENDANT]: How many guys have they seen today?

              [DEFENDANT]: Why are they not in school)

              [DEAN]: we just started day off to make some x tra $$$

              [DEFENDANT]: How much xtra do you need?

              [DEFENDANT]: You know that no man can touch your daughters because they

      are under age and it’s illegal.

              [DEAN]: ur loss

              [DEFENDANT]: I didn’t say I wasn’t coming

              [DEFENDANT]: I am trying to understand your reasoning



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2018 IL App (2d) 170048


              [DEAN]: making $$ that’s all

              [DEFENDANT]: Have they done this before?

              [DEFENDANT]: Look at it from my standpoint. I am nervous

              [DEAN]: 1 yes and 1 is learning

              [DEAN]: they will calm ur nerves

              [DEFENDANT]: The older?

              [DEAN]: 15 does fs 14 is still learning but great hands

              [DEFENDANT]: I am sure they will. But do u understand why I am asking all

      these questions? I want to know that I am going to be safe not arrested or scammed. You

      arnulle [sic] discrete

              [DEFENDANT]: Fs? Full service?

              [DEAN]: all safe here very discreet

              [DEAN]: yes on fs

              [DEFENDANT]: As long as you can assure me that I will be safe I won’t get

      arrested and no vid or anything after this will happen. I am a go

              [DEAN]: i will see u when u get here all good here

              [DEFENDANT]: Is someone else there

              [DEAN]: just my daughter and I can stay in room or leave and return when time is

      up

              [DEFENDANT]: Only one daughter?

              [DEAN]: both r here

              [DEFENDANT]: No one else has asked about your ad

              [DEAN]: yes have some appointmnets [sic] already which time do u want



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2018 IL App (2d) 170048


             [DEFENDANT]: What’s open

             [DEFENDANT]: I’m half ways there

             [DEAN]: how long will u b?

             [DEFENDANT]: Well I can try an hour. But if it’s easier I can do half

             [DEAN]: we can do either how long b4 u get here

             [DEFENDANT]: Where is here

             [DEAN]: we r near 88/orchard

             [DEFENDANT]: I know where though

             [DEAN]: holiday inn

             [DEFENDANT]: Really?

             [DEFENDANT]: Haha

             [DEFENDANT]: Ok then I am here

             [DEAN]: ???

             [DEFENDANT]: I was at the bank when you said holiday inn so I am here

             [DEAN]: in the parking lot?

             [DEFENDANT]: Yes

             [DEAN]: rm 211 knock on the door and say papa johns

             [DEFENDANT]: For real?

             [DEFENDANT]: Are you in the room?

             [DEAN]: yes

             [DEFENDANT]: Why can’t I meet you first

             [DEAN]: we can talk whn u get here




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2018 IL App (2d) 170048


             [DEFENDANT]: See that makes me nervous. Your not helping me feel relaxed.

      I know the cars outside and one makes me real worried

             [DEFENDANT]: As soon as I come in I feel that I am going to get cuffed

             [DEFENDANT]: ??

             [DEAN]: what cars r u talkin about i don’t see anything now ur making me

      nervous

             [DEFENDANT]: Ok. Be honest with me you are not going to have me arrested

      or I am not going to be on dateline?

             [DEFENDANT]: Not trying to make you nervous

             [DEAN]: no and no hell no

             [DEFENDANT]: Your not part of any undercover thing?

             [DEAN]: omg no

             [DEFENDANT]: Ok good.

             [DEFENDANT]: I just have to make sure I am safe

             [DEAN]: me too

             [DEFENDANT]: There are people at the front desk. What do I tell them?

             [DEAN]: just walk up to room

             [DEFENDANT]: Do I have to say papa johns

             [DEAN]: im trying to make it look as real as possible

             [DEFENDANT]: There is no one in the hallway now. Can’t you let me in?

             [DEAN]: just knock on door geez”




                                             -7­
2018 IL App (2d) 170048


¶5         Defendant entered the hotel room and encountered Melissa Siffermann, a special agent

with DHS, who was posing as the mother offering her two daughters for sex. Defendant paid her

$150 and was thereafter arrested.

¶6         On January 28, 2015, defendant was indicted on one count of involuntary sexual

servitude of a minor (id. § 10-9(c)(2)), one count of traveling to meet a minor (id. § 11-26(a)),

and one count of grooming (id. § 11-25(a)).

¶7         Defendant moved to dismiss count I of the indictment, based on the absence of an actual

minor. The trial court denied the motion, stating that the issue was to be determined by the trier

of fact.

¶8         A bench trial commenced on October 17, 2016, at which the following relevant testimony

was provided. Geoffrey Howard, a special agent with DHS, testified that DHS entered into a

partnership with the Aurora Police Department to target individuals involved in the sex

trafficking of children. On December 2, 2014, they were conducting an operation out of two

adjoining rooms in an Aurora hotel. One of the rooms was used as the meeting room for the

target and the undercover officer. The other room was considered the control room, where

several officers would correspond via text messages with individuals responding to the online ad.

Two surveillance cameras had been set up; one camera recorded the hallway outside of the

meeting room, and the other camera recorded the inside of the meeting room. Video monitors

for the cameras were located in the control room.

¶9         Howard testified that, on the day in question, the ad was posted on an escort service

webpage called “Backpage.com.” Howard testified that the officers used a computer program

called “LETS,” 1 which allowed them to respond to incoming texts via computer rather than

           1
               LETS is an acronym for Law Enforcement Telecommunication System.           See All



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2018 IL App (2d) 170048


phone. The program allowed more than one officer to respond to more than one individual using

the number placed in the online ad. The program created a record of the incoming and outgoing

messages.

¶ 10   Erik Swastek, an officer with the Aurora Police Department, testified that he was the lead

investigator in the operation. He prepared the ad that was placed on Backpage.com. He stated

that, if an ad included an age younger than 18, the ad would not post. However, he learned from

known prostitutes that people trying to find juveniles on Backpage.com looked for people

posting as 18-year-olds. Swastek testified that the phone number used was a “spoof number.”

When someone responded to the ad, the text message would go to a computer in the control

room. Swastek would then assign the number to an officer who would then be responsible for

communicating with that person. On December 2, 2014, there were four or five “texters”

working in the control room. At 12:31 p.m. on December 2, 2014, a text was received in

response to the ad. The text was assigned to Dean.

¶ 11   Swastek testified that the text message conversations were preserved on a server through

the LETS system. The conversations could be downloaded and printed. There was no way for

anyone to change or manipulate conversations on the server. Swastek identified People’s exhibit

No. 2 as the printout of the text conversation with defendant from the LETS program.

¶ 12   Swastek testified further that, after defendant was arrested, he took defendant’s phone

and placed it in a bag. He confirmed that the phone was the one used to send the text messages

in response to the ad. On December 14, 2014, Swastek hooked the phone up to a Cellebrite

Touch Universal Forensic Extraction Device (Cellebrite) and extracted all the data on the phone.

Acronyms, https://allacronyms.com/LETS/Law_Enforcement_Telecommunication_System (last

visited Feb. 13, 2018).



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2018 IL App (2d) 170048


Swastek explained that a Cellebrite downloads a phone’s data to a computer. Before hooking the

phone up to the Cellebrite, Swastek looked at the text message conversation between defendant

and Dean that was on the phone. He testified that every part of the conversation was on the

phone; nothing had been deleted. Swastek identified People’s exhibit No. 6-A as a printout of

the text messages from the Cellebrite extraction and People’s exhibit No. 5 as a printout of the

Cellebrite extraction of the entire contents of the phone. Swastek testified that Officer Benjamin

Grabowski took the lead on the Cellebrite extraction and showed Swastek how to do it.

¶ 13   On cross-examination, Swastek was asked about People’s exhibit No. 2 and his training

on the LETS program. He testified that he was not an expert on the LETS program but that he

knew that the text conversations were automatically downloaded to the server. When asked

whether he could independently recall whether the information that was saved on the server was

exactly the same information retrieved from the phone, he stated:

               “If I understood you correctly, when I did the extract, I had the phone in my hand,

       and I went line by line when I did that and made sure like either he didn’t delete

       something that I would have to account for in my report or that, you know, whatever

       happens in the magic that is technology something got messed up.

               But I went phone to screen, line by line, and made sure it matched exactly.”

¶ 14   When the State moved to admit People’s exhibit No. 6-A into evidence, defendant

objected, stating:

               “Judge, I would continue to say that relative to the text messaging, this officer

       wasn’t on the other side of those text messages, so if he could lay a foundation for what

       somebody else said, I think that’s a little bit problematic.




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2018 IL App (2d) 170048


               Once again, I’m not suggesting this is a hard foundation to lay. I’m just saying

       it’s the wrong guy to lay it. Sergeant Dean is the one that was the responder on all of

       these text messages.”

The court withheld ruling, pending testimony from Dean.

¶ 15   Dean testified that he was assigned to respond to the texts coming in from defendant. He

responded using his laptop, and the text conversation was recorded through a system on his

laptop. The recorded conversation was later downloaded and preserved. Dean testified that he

was later able to examine the contents of the recorded conversation and determine that it was

recorded accurately. Dean examined People’s exhibit No. 2, which he identified as a printout of

the recorded conversation, and testified that it appeared to be the entire conversation that he had

with defendant.

¶ 16   Dean testified that, while texting with defendant, he advised defendant to knock on the

door to the hotel room where defendant was supposed to meet with the “mother.” Thereafter, via

a video monitor, Dean saw defendant knock on the door and enter the meeting room, where he

encountered Siffermann. After having a conversation with her, defendant was arrested. Dean

confirmed with Swastek, who had taken defendant’s phone, that the phone number matched the

phone number he had been texting.

¶ 17   When the State asked to admit People’s exhibit No. 2 into evidence, defendant continued

his objection, arguing: “[W]e’re dealing with a software program where we have not heard how

it works, how it was put together, what it shows, whether there’s any accuracy involved in it at

all.” The trial court overruled the objection and admitted the exhibit, stating:

       “I believe the foundation has been laid.




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2018 IL App (2d) 170048


               Specifically, I also rely on the fact that this witness said that he verified what was

       on the text messages is what he remembered, and I believe the previous witness, Swastek,

       testified that he actually went line by line between his computer screen and the phone and

       that they corresponded with each other.”

Thereafter, Dean testified as to the contents of the text conversation with defendant.

¶ 18   On cross-examination, Dean testified that he did not personally save the text messages on

the server. He assumed that it was automatically done by the LETS program. He agreed that he

was not an expert on the LETS program. Dean never compared People’s exhibit No. 2 with the

text messages on his computer. He could not say that it was exactly the same as what was on his

computer.

¶ 19   On redirect examination, Dean testified that the text messages contained in People’s

exhibit No. 2 were the text messages that he personally sent and received on December 2, 2014.

¶ 20   Following Dean’s testimony, defendant renewed his objection to the admission of

People’s exhibit No. 2. The trial court stated:

               “I’m not going to reconsider it. In going through the facts, what I’m relying on

       specifically is Swastek testified that they took the phone off of your client, that they

       secured the phone.

               Swastek then went to the computer and compared line by line the computer and

       the phone and that they were the same. And then Dean has testified that People’s No. 2

       was a transcript of basically—as I took it, basically what Swastek compared on the

       computer and the phone, too. With the comparison being the same, Dean testifying that

       that was his conversation.




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2018 IL App (2d) 170048


               I understand your argument, but I believe the foundation has been laid that that is

       the true and accurate conversation, and I will not reconsider my position.”

¶ 21   Siffermann testified that, on December 2, 2014, she was working undercover, playing the

role of a mother offering her two teenage daughters for sex. She did not participate in the texting

but was informed by the officers about the general details of the conversations taking place, such

as the amount of money to be charged. At about 2:25 p.m., there was a knock on the door of the

hotel room being used as the meeting room. Defendant entered, she had a conversation with

him, and he gave her $150. The meeting was recorded on video. A copy of the video and a

transcript of her conversation with defendant were admitted into evidence. The video was

played for the court.

¶ 22   On cross-examination, Siffermann conceded that when defendant entered the room there

were no children present and defendant never asked about children. Defendant told her that he

was going to do the full hour. They did not discuss specific sexual acts or with whom he was

expecting to engage in sexual acts. Siffermann’s understanding of their conversation was that he

was there to have sex with a minor and that he was nervous about it. Defendant did not use

specific words indicating that he was there to have sex with a minor. Her belief that defendant

was there to have sex with a minor was based on the contents of the text conversation.

Siffermann read the text conversation before meeting with defendant. Based on defendant’s

stating that he wanted to do the full hour and then paying her $150, Siffermann believed that she

and defendant came to an agreement that the money was being exchanged for sexual acts.

¶ 23   Grabowski testified that, on December 14, 2014, he was asked by Swastek to help

execute a warrant on an iPhone. Grabowski had been trained on the Cellebrite, which extracts all

data from phones, including deleted data, and migrates the data to a computer so that it can be



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2018 IL App (2d) 170048


read in linear format. As of December 2014, he had performed over 50 Cellebrite extractions.

Swastek gave him defendant’s phone, and with Swastek present he successfully ran the

Cellebrite extraction without incident. The data was then downloaded to a disk and given to

Swastek.

¶ 24   Defendant testified that he lived in Oswego and had been married for 13 years. On

December 2, 2014, he was on his computer at home when he saw the ad placed on

Backpage.com.     The ad made no reference to children.         He responded to the ad by text.

Defendant was shown People’s exhibit No. 2, which he identified as a transcript of the text

messages sent between himself and the recipient, and agreed that it was a true and accurate

representation of those text messages. Throughout his testimony, defendant went through the

transcript line by line with counsel.

¶ 25   Defendant testified that, when he answered the ad, he believed that he would be getting

“just a massage and anything else would be discussed later on.” He believed that there was a

possibility of a sexual encounter. Defendant testified that, when the “mother” texted, “[m]y girls

essentially will do whatever I tell them to,” he “was a little thrown off” because the ad referenced

a single person. He thought that “she had friends or something.” When he asked the mother,

“ ‘Do you do things?’ ” and she responded, “ ‘no just teaching 2day,’ ” he responded “ ‘Ok.’ ”

By responding “Ok,” he was just acknowledging what she said; he was not expressing his intent

to have sex with her children. When the mother texted that she was in a hotel, defendant texted

“ ‘Are you interested?’ ” Defendant was referring to the mother. When the mother responded,

“ ‘Are u? We r ready,’ ” defendant believed that she was referring to “anything that would

transpire between her and [him].” When defendant asked if she would be in the room, it was

because he wanted to make sure that he could talk to her and to clarify that his main purpose was



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to see her. When the mother told him that she would leave and return when the time was up,

“[he] wasn’t comfortable with that.”

¶ 26   Defendant testified further that he engaged in a dialogue about the daughters because he

had “never experienced anything like this, and [he] was just kind of thrown back and/or shocked

that a mother would be willing to put their daughters through this.” He never agreed to pay $50

for the girls to “do each other.” He testified that he “was not interested in doing that. That was

never an option. It would never even cross [his] mind.” When he asked how many other guys

the girls had seen that day and why they were not in school, it was because he was “just kind of

shocked.” When the mother responded “ ‘ur loss’ ” to his comment that touching her daughters

was illegal, and defendant texted, “ ‘I didn’t say I wasn’t coming,’ ” it was because he did not

want her to get upset. His intent behind continuing the conversation about her daughters was to

try to see if he could eventually talk to her alone. When defendant asked about “ ‘Fs’ ” regarding

the 15-year-old, he was trying to clarify only what the mother meant, not what he expected to

happen. His expectation was that he would be seeing the 18-year-old pictured in the ad.

¶ 27   Defendant testified that when he arrived at the hotel room Siffermann told him that her

daughter was at the pool. Defendant testified: “That meant perfect scenario. This is what I

wanted. I wanted to meet with her, discuss anything with her, and there was no point in any

children, which is what I wanted, because I never wanted interaction with anyone underage nor

did I ever ask that.” When Siffermann asked how much time he wanted and whether he was

okay with the price, he told her that he wanted an hour and he gave her $150. She did not talk

about the children at any point, nor did he. After he gave her the money, she told him that she

needed to finish brushing her teeth. Defendant thought, “[O]kay, great. It’s nothing with

minors. It’s just going to be me and her.” Defendant sat down, and Siffermann went into the



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bathroom. The door to the adjoining room opened, and several officers entered. Defendant was

arrested and brought into the adjoining room.

¶ 28   After being arrested, defendant gave the officers his cell phone and the password. He

was brought to the police station and questioned. When asked about his intent, he told them that

he “was there for a massage and/or hand job, if possible.”

¶ 29   The trial court found defendant guilty of involuntary sexual servitude of a minor (id.

§ 10-9(c)(2)), traveling to meet a minor (id. § 11-26(a)), and grooming (id. § 11-25(a)).

Defendant filed a motion for a new trial, which the trial court denied. Following a sentencing

hearing, the trial court sentenced defendant to seven years’ imprisonment on his conviction of

involuntary sexual servitude of a minor and to four years on his conviction of traveling to meet a

minor, to run concurrently. The grooming conviction merged into the conviction of traveling to

meet a minor. Defendant timely appealed.

¶ 30                                      II. ANALYSIS

¶ 31                              A. Sufficiency of the Evidence

¶ 32   Defendant argues that the State failed to prove him guilty beyond a reasonable doubt of

involuntary sexual servitude of a minor (id. § 10-9(c)(2)), because “the collective testimony of

the State’s witnesses, that the defendant intentionally solicited sex with a minor, was

contradicted not only by his plausible denial but also by the fact that no minor ever existed.”

¶ 33   We review a claim of insufficient evidence to determine “ ‘whether, after viewing the

evidence in the light most favorable to the prosecution, any rational trier of fact could have found

the essential elements of the crime beyond a reasonable doubt.’ ” (Emphasis in original.) People

v. Collins, 106 Ill. 2d 237, 261 (1985) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).

A conviction will not be set aside unless the evidence is so improbable or unsatisfactory that it



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creates a reasonable doubt of the defendant’s guilt. Id. “[I]t is not the function of this court to

retry the defendant.” Id. The trier of fact must assess the credibility of the witnesses, determine

the weight to give their testimony, resolve conflicts in the evidence, and draw reasonable

inferences from that evidence, and this court will not substitute its judgment for that of the trier

of fact on these matters. People v. Ortiz, 196 Ill. 2d 236, 259 (2001).

¶ 34                                     1. Actual Minor

¶ 35   We consider first defendant’s argument that, because no actual minor was involved, he

could not be found guilty of involuntary sexual servitude of a minor. Section 10-9(c)(2) of the

Criminal Code of 2012 (Criminal Code) (720 ILCS 5/10-9(c)(2) (West 2014)) provides as

follows:

               “(c) Involuntary sexual servitude of a minor. A person commits involuntary

       sexual servitude of a minor when he or she knowingly recruits, entices, harbors,

       transports, provides, or obtains by any means, or attempts to recruit, entice, harbor,

       provide, or obtain by any means, another person under 18 years of age, knowing that the

       minor will engage in commercial sexual activity, a sexually-explicit performance, or the

       production of pornography, or causes or attempts to cause a minor to engage in one or

       more of those activities and:

               ***

               (2) there is no overt force or threat and the minor is under the age of 17 years[.]”

       (Emphasis added.)

“ ‘Commercial sexual activity’ means any sex act on account of which anything of value is

given, promised to, or received by any person.” Id. § 10-9(a)(2). Whether an actual minor is




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required for a conviction under section 10-9(c)(2) of the Criminal Code is a question of statutory

interpretation, which we consider de novo. People v. Giraud, 2012 IL 113116, ¶ 6.

¶ 36   Although the parties maintain that the issue is one of first impression, this court recently

considered and rejected the argument now raised by defendant. See People v. Gaciarz, 2017 IL

App (2d) 161102. Gaciarz involved the same undercover operation run by the Aurora Police

Department, and the defendant was charged with the same offenses as defendant here. Id. ¶ 1.

As in the present case, the defendant argued that he could not be found guilty of involuntary

sexual servitude of a minor, because no actual minor was involved. Id. ¶ 32.

¶ 37   In rejecting the defendant’s argument, we began by noting that, although the defendant

was not charged with attempting to commit the offense under the separate attempt statute (see

720 ILCS 5/8-4(a) (West 2014) (“A person commits the offense of attempt when, with intent to

commit a specific offense, he or she does any act that constitutes a substantial step toward the

commission of that offense.”)), section 10-9 of the Criminal Code criminalized the attempted

commission of the offense in the same manner as the completed crime. Gaciarz, 2017 IL App

(2d) 161102, ¶ 31.    There, as here, the indictment alleged that the “defendant knowingly

attempted to obtain by any means a person under 18 years of age, knowing that the minor would

engage in commercial sexual activity, and that there was no overt force or threat and the minor

was under the age of 17 years.” Id. ¶ 29.

¶ 38   We examined three federal cases involving the prosecution of attempted crimes involving

nonexistent minors. Id. ¶¶ 33-38; see United States v. Wolff, 796 F.3d 972 (8th Cir. 2015);

United States v. Coté, 504 F.3d 682 (7th Cir. 2007); United States v. Meek, 366 F.3d 705 (9th

Cir. 2004). In Wolff, the defendant was charged with attempted sex trafficking of a minor, in

violation of 18 U.S.C. §§ 1591 and 1594. Wolff, 796 F.3d at 972. The relevant portion of



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§ 1591(a) stated that whoever knowingly “ ‘recruits, entices, harbors, transports, provides,

obtains, or maintains by any means a person,’ ‘knowing, or in reckless disregard of the fact, ...

that the person has not attained the age of 18 years and will be caused to engage in a commercial

sex act,’ has violated the law.”     Id. at 974 (quoting 18 U.S.C. § 1591(a) (2012)).       Under

§ 1594(a), an attempt to violate § 1591(a) is punishable “ ‘in the same manner as a completed

violation of that section.’ ” Id. (quoting 18 U.S.C. § 1594(a) (2012)). The Wolff defendant

argued that the indictment was insufficient as a matter of law where there was no actual minor

being trafficked. Id. The Eighth Circuit disagreed. The court noted that “a crime charged as an

attempt has two elements:      intent to commit the predicate offense, and conduct that is a

substantial step toward its commission.”      (Internal quotation marks omitted.)     Id.   “[T]he

government must prove the requisite intent applicable to the predicate offense, but proof of the

ability to actually carry out the predicate offense is not required.” Id. at 974-75. The court held

that the defendant’s “subjective intent to engage in a commercial sex act with someone he

believed to be a minor female, and the substantial steps he took toward commission of that

offense,” constituted attempted sex trafficking. Id. at 975.

¶ 39   In both Coté and Meek, the defendants were charged with violating 18 U.S.C. § 2422(b),

which provided in pertinent part:

       “Whoever *** knowingly persuades, induces, entices, or coerces any individual who has

       not attained the age of 18 years, to engage in *** any sexual activity for which any

       person can be charged with a criminal offense, or attempts to do so, shall be [punished

       accordingly].” (Emphasis added.) 18 U.S.C. § 2422(b) (2000).




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See also Coté, 504 F.3d at 685; Meek, 366 F.3d at 718. In both cases, the defendants had

communicated with undercover officers, not with actual minors. See Coté, 504 F.3d at 683-84;

Meek, 366 F.3d at 709-10.

¶ 40   In Meek, the defendant argued that he could not be found guilty where his

communications had been with an undercover officer rather than a minor. Meek, 366 F.3d at

717. The Ninth Circuit rejected this argument, holding that an actual minor was not required for

an attempt conviction under 18 U.S.C. § 2422(b). Meek, 366 F.3d at 717-18. Instead, the belief

that a minor was involved was sufficient. Id. Similarly, in Coté, the Seventh Circuit rejected the

defendant’s argument that he could not be found guilty if he mistakenly believed that the victim

was a minor. Coté, 504 F.3d at 687. Noting that “[the defendant] was prosecuted under the

attempt provision of the statute,” the court agreed “with every circuit that has considered the

issue, that the Government’s burden in such a case is to demonstrate, beyond a reasonable doubt,

that the defendant intended to undertake one of the proscribed acts with respect to a minor.”

(Emphases in original.) Id. “[I]t was the subjective belief of [the defendant] that he was dealing

with an underage girl that had to be proved to the jury.” Id. at 688. The court thus held that to

sustain an attempt conviction the government “was required to prove that [the defendant] acted

with the specific intent to commit the underlying crime and that he took a substantial step

towards completion of the offense.” Id. at 687.

¶ 41   We next noted in Gaciarz that this court had also previously addressed the commission of

attempted crimes involving nonexistent minors. Gaciarz, 2017 IL App (2d) 161102, ¶¶ 39-40;

see People v. Scott, 318 Ill. App. 3d 46 (2000); People v. Patterson, 314 Ill. App. 3d 962 (2000).

For instance, in Scott, we held that the defendant could be found guilty of attempted predatory

criminal sexual assault of a child when he engaged in sexually explicit communications via the



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Internet with a detective posing as a 12-year-old boy, arrived at an agreed-upon location, and

confirmed that he would have had sex with the boy if the boy had been willing. Scott, 318 Ill.

App. 3d at 49. In Patterson, we held that the evidence was sufficient to prove the defendant

guilty of attempted aggravated criminal sexual abuse where the defendant communicated via an

Internet chat room with an officer posing as a 15-year-old boy, offered to perform oral sex on the

boy, and thereafter arrived at the designated location. Patterson, 314 Ill. App. 3d at 966.

¶ 42   Based on the above cases, we thus concluded that the lack of evidence establishing the

existence of a purported minor did not preclude the State from proving an essential element of

the offense in question. Gaciarz, 2017 IL App (2d) 161102, ¶ 42.

       “[T]he sufficiency of the evidence in these types of cases turns on whether a defendant

       intended to commit a specific offense and whether he did anything that constituted a

       substantial step toward the commission of that offense.” Id.

We adhere to our reasoning in Gaciarz, and we reject defendant’s argument that the lack of an

actual minor precluded the State from proving the offense at issue.

¶ 43                                2. Intent to Solicit a Minor

¶ 44   We next consider defendant’s argument that, in light of his “plausible denial,” the State

failed to prove beyond a reasonable doubt that he intended to solicit sexual acts from a minor.

¶ 45   As noted, to prove him guilty of involuntary sexual servitude of a minor under the

attempt provision of the statute, the State had to prove that defendant intended to obtain an

individual under age 17 to engage in commercial sexual activity and that he took a substantial

step toward the commission of that offense. Id. Here, defendant does not dispute that he

committed a substantial step toward the commission of the offense. Indeed, there is no question

that $150 was exchanged for sexual activity. Instead, defendant argues that the State failed to



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prove beyond a reasonable doubt that he intended to solicit sexual activity from a minor. We

disagree. The text messages between defendant and the “mother” make defendant’s intent clear.

¶ 46   Although defendant claims that he did not intend to engage in sexual activity with any

minor, only their mother, this claim is belied by the text messages. Upon responding to the ad,

defendant was quickly informed that a mother was offering her two daughters, ages 14 and 15,

for sexual activity.   When defendant asked the “mother” if she did things, the “mother”

responded, no, she was just teaching that day. When defendant asked the “mother” whether she

would be in the room, she responded, no, she would leave and return once the time was up.

Defendant’s continuation of the conversation, after the “mother” made clear that she was not

available for any sexual activity, but that her 14- and 15-year-old daughters were, clearly

indicated his intent to engage in sexual activity with persons under the age of 17. Defendant

asked what the rate was and what “they” were able to do, and the “mother” responded, “anything

I tell them to.” Defendant asked whether “they” would do “each other.” The “mother” indicated

that “15 does fs 14 is still learning but great hands.” Defendant asked for clarification that “Fs”

referred to “full service.” Defendant confirmed that he was a “go” as long as the “mother” could

assure him that he was safe.

¶ 47   The fact that defendant continued to engage in the conversation about sexual activity,

after the “mother” made clear that she was not available, was sufficient to establish his intent to

engage in sexual activity with the daughters. This intent, combined with his arrival at the

designated location and his transmission of $150 to the “mother,” was sufficient to sustain

defendant’s conviction of involuntary sexual servitude of a minor.

¶ 48                           B. Admissibility of Text Messages




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¶ 49   Defendant’s final argument is that the trial court erred in admitting People’s exhibit

No. 2, the transcript of the text messages compiled by the LETS program.

¶ 50   “A trial court’s decision to admit documentary evidence will not be reversed absent an

abuse of discretion.” People v. Chromik, 408 Ill. App. 3d 1028, 1046 (2011). A trial court

abuses its discretion where its decision is arbitrary, fanciful, or unreasonable or where no

reasonable person would take the court’s view. People v. Morgan, 197 Ill. 2d 404, 455 (2001).

¶ 51   As to a proper foundation for admission, text messages are treated like any other form of

documentary evidence. See Chromik, 408 Ill. App. 3d at 1046-47. A proper foundation is laid

for the admission of documentary evidence when the document has been identified and

authenticated. Id. at 1046. Authentication of a document requires the proponent to present

evidence that the document is what the proponent claims it to be. Id.; see also Ill. R. Evid.

901(a) (eff. Jan. 1, 2011). The proponent need prove only a rational basis upon which the fact

finder can conclude that the document did in fact belong to or was authored by the party alleged.

See People v. Downin, 357 Ill. App. 3d 193, 203 (2005). The court’s “finding of authentication

is merely a finding that there is sufficient evidence to justify presentation of the offered evidence

to the trier of fact and does not preclude the opponent from contesting the genuineness of the

writing after the basic authentication requirements are satisfied.” Id. at 202-03. If the court,

after serving its screening function, allows the evidence to be admitted, the issue of the

document’s authorship is ultimately for the jury to determine. Id. at 203.

¶ 52   Documentary evidence, such as a text message, may be authenticated by either direct or

circumstantial evidence. Id. Circumstantial evidence of authenticity includes such factors as

appearance, contents, substance, and distinctive characteristics, which are to be considered with

the surrounding circumstances. See id. Documentary evidence, therefore, may be authenticated



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by its contents if it is shown to contain information that would be known only by the alleged

author of the document or, at the very least, by a small group of people including the alleged

author. See id.

¶ 53   Here, we find no abuse of discretion, as there was direct and circumstantial evidence that

the text transcript was what the State claimed it to be. Dean was the undercover officer who

personally sent and received the text messages contained in People’s exhibit No. 2. Dean

testified that People’s exhibit No. 2 was a transcript of the entire conversation between himself

and defendant and affirmed that it had been recorded accurately. Swastek testified that he took

defendant’s phone after he was arrested. Defendant gave the officers his phone number, and it

matched the number that Dean had been texting. Swastek further testified that he confirmed, line

by line, that the text messages on the phone matched the text messages on the computer. In

addition, defendant was told in the text messages to knock on a certain hotel room door, and he

did so. When he entered the room, defendant confirmed with Siffermann that he wanted the full

hour and was okay with the rate. In addition to Dean’s and Swastek’s testimony, defendant

testified that People’s exhibit No. 2 was a true and accurate representation of the text messages

between himself and Dean. Based on the foregoing, we find no abuse of discretion.

¶ 54   We note that defendant seems to suggest, without expressly stating, that the text message

transcript needed to be authenticated as a computer-generated record. For instance, he argues

that neither Dean nor Swastek was trained to use the LETS program. He further argues that no

one testified how the program worked, where the data was stored, or how the program compiled

the data. However, defendant cites no authority to support the argument that the transcript

should be treated as a computer-generated record. 2 The failure to cite relevant authority is a

       2
           Indeed, other than a string citation to four cases supporting our standard of review, the



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violation of our supreme court’s rule concerning an appellant’s brief and forfeits our

consideration of the argument. Ill. S. Ct. R. 341(h)(7) (eff. Nov. 1, 2017); Fortech, L.L.C. v.

R.W. Dunteman Co., 366 Ill. App. 3d 804, 818 (2006). In any event, as the State points out,

“[c]omputer-generated records are the spontaneously created tangible results of the internal

electrical and mechanical operations of a computer itself, which are not dependent upon the

observations and reporting of a human declarant.” People v. Kent, 2017 IL App (2d) 140917,

¶ 128. Here, the transcript was dependent on the input of Dean and defendant. Thus, we agree

with the State that the transcript was not a computer-generated record.

¶ 55                                   III. CONCLUSION

¶ 56      For the reasons stated, we affirm the judgment of the circuit court of Kane County. As

part of our judgment, we grant the State’s request that defendant be assessed $50 as costs for this

appeal. 55 ILCS 5/4-2002(a) (West 2016); see also People v. Nicholls, 71 Ill. 2d 166, 178

(1978).

¶ 57      Affirmed.




only case defendant does cite is nonprecedential. See People v. Augustine, 2016 IL App (2d)

141158-U. Under Illinois Supreme Court Rule 23(e)(1) (eff. July 1, 2011), such orders “may not

be cited by any party except to support contentions of double jeopardy, res judicata, collateral

estoppel or law of the case.” In any event, Augustine does not support defendant’s argument. In

that case, we considered the admissibility of text messages extracted from the defendant’s phone

and, in so doing, expressly stated that “[t]o establish a proper foundation for admissibility, text

messages are treated like any other form of documentary evidence.” Augustine, 2016 IL App

(2d) 141158-U, ¶ 42.



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