People v. Lewis , 2022 IL 126705 ( 2022 )

2022 IL 126705IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket No. 126705)
THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v.
SHANE LEWIS, Appellee.
Opinion filed June 24, 2022.
JUSTICE NEVILLE delivered the judgment of the court, with opinion.
Chief Justice Anne M. Burke and Justices Garman and Overstreet concurred in
the judgment and opinion.
Justice Michael J. Burke dissented, with opinion, joined by Justices Theis and
Carter.
OPINION
¶1 Defendant Shane Lewis was charged with 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)). At trial, defendant asserted the defense of
entrapment. A jury found defendant guilty of the offenses, and the circuit court of
Kane County sentenced him to six years’ imprisonment. On appeal, defendant
argued that defense counsel was ineffective in presenting his entrapment defense
where he failed to (1) object to the circuit court’s responses to two jury notes
regarding the legal definition of “predisposed,” (2) object to the prosecutor’s
closing argument mischaracterizing the entrapment defense and the parties’
relevant burdens of proof, and (3) present defendant’s lack of a criminal record to
the jury. The appellate court agreed and reversed defendant’s conviction, holding
that defense counsel’s cumulative errors rendered the proceeding unreliable under
Strickland v. Washington, 466 U.S. 668 (1984). 2020 IL App (2d) 170900, ¶ 59.
The court remanded for a new trial, finding that the evidence was sufficient to retry
defendant, for purposes of double jeopardy. Id. ¶ 60. For the following reasons, we
affirm the judgment of the appellate court.
¶2 I. BACKGROUND
¶3 Defendant was charged by indictment with involuntary sexual servitude of a
minor under section 10-9(c)(2) of the Criminal Code of 2012 (Code). 720 ILCS
5/10-9(c)(2) (West 2014). He was also charged with the felony offense of traveling
to meet a minor under section 11-26(a) of the Code (id. § 11-26(a)) and grooming
under section 11-25(a) of the Code (id. § 11-25(a)). The case proceeded to a jury
trial on July 31, 2017.
¶4 A. Jury Trial
¶5 The trial commenced, during which the following evidence was presented to
the jury. Geoffrey Howard, a special agent with the United States Department of
Homeland Security (DHS), testified that he coordinated a sting operation with the
Aurora Police Department and that the goal of the undercover operation was to
arrest multiple people on the demand side of human trafficking. The operation
involved posting an advertisement for an escort on Backpage.com. He described
Backpage.com (Backpage) as a website that had advertisements for various goods
and services and had an adult services section. The phone number in the ad did not
link to an actual phone but rather went into a software system that allowed multiple
officers to read and respond to text messages. The program created a record of all
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the messages. According to Howard, as a matter of protocol, the officers were to
stop talking or texting with a suspect if the suspect wanted to have sex with an adult.
Before posting the ad, agents reserved adjoining rooms at a hotel in Aurora, and in
the “target room” an undercover agent posed as a mother who was offering her 14-
and 15-year-old daughters for sex. Two surveillance cameras were set up, one in
the hallway and the other in the “target room.”
¶6 Investigator Erik Swastek of the Aurora Police Department testified that he
composed and posted the advertisement on January 8, 2015. He explained that to
post a Backpage ad a person had to be 18 or older. The sting operation’s ad
indicated that the escort was 18 years old. Swastek testified that the officers were
instructed to respond that they were the mother of two minor girls, both available
for sex in exchange for money.
¶7 The advertisement was titled “young warm and ready:).” The body of the ad
read:
“Its ssooooooo cold outside, come warm up with a hot little co ed. Im young,
eager to please and more than willing to meet all your desires. come keep me
warm and I promise to return the favor:O:):) ask about my two for one special
text me at 630-five 2 four-four 8 four 8.
100 donation for hh
150 donation full hour
Poster’s age: 18” 1
The ad included a photo of an adult female appearing in cut-off jeans and a midriff-
baring top with her face cropped off. See Appendix I.
¶8 Agent Spencer Taub of DHS testified that he was the assigned texter who
responded to defendant’s texts beginning at 10:02 p.m. He pretended to be the
1
[Sic] throughout.
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mother offering her underage daughters for sexual services. The following text
message conversation 2 occurred:
“[DEFENDANT]: Hey looking to get warm
[TAUB]: hey—my girls could use some warming up 2 ;)
[DEFENDANT]: What’s up with 2 girl. I only see pic of one?
[TAUB]: no can’t post pix of my daughters, 2 risky
[DEFENDANT]: HaHa. Well what’s the 2 girl special? And do u serve
downers grove
[TAUB]: no we r in aurora. infall only
[DEFENDANT]: Well it’s not to far from me but to come out in this
weather I would have to know what they look like. U don’t have to post a pic.
U can text some
[TAUB]: 200 for 2 grls
[DEFENDANT]: That’s fine but I need to know what they look like
[TAUB]: the 14 yrs is blond and 15 yrs is brunet—both r in sports
[DEFENDANT]: wtf?? Not interested in minors. You crazy?
[DEFENDANT]: I’m 32
[DEFENDANT]: 18 is good but nothing under that too risky!!
[TAUB]: as long as u r gentle and treat my girls good
[TAUB]: I’m here to protect my grls
[DEFENDANT]: Are you a female?
2
Much of the evidence in this case is in the form of text messages. There are numerous
grammatical, spelling and syntax errors in the messages. Because indicating each mistake with a
[sic] would be distracting and correcting all the errors posed the risk of altering the meaning of the
messages, we reproduce the messages in their original form.
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[DEFENDANT]: Are u affiliated with the law or something?
[TAUB]: yes
[DEFENDANT]: Yes your with the law
[TAUB]: ummm.. no.. r u?
[DEFENDANT]: No.
[DEFENDANT]: Are u affiliated with the law. I want to make this question
clear. Please answer in your next text
[DEFENDANT]: I am not!!
[DEFENDANT]: What if I just see u. Since your above 18
[TAUB]: no—wat r u talking about? r u a cop? Ur txt sounds like u r
[DEFENDANT]: No im not! But why wud u advertise their age when u
know that’s illegal under 18.
[TAUB]: I said yes to being a female—u txt way 2 fast
[DEFENDANT]: Haha sorry for fast text.
[TAUB]: because I don’t want fricken cops at my f*** door
[DEFENDANT]: I think naturally they are old enough but the law says they
are not.
[TAUB]: i do 2—my girls want 2 do this
[DEFENDANT]: Send me a pic
[TAUB]: i won’t put them into sum thing they don’t wann do
[DEFENDANT]: Ok where u at
[TAUB]: haha my txts are cumin in so f*** up
[TAUB]: im in aurora
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[DEFENDANT]: Where you at. I’ll come only if your there watching
[DEFENDANT]: I know aurora. Where at?
[TAUB]: yea—i’ll watch—u b 2 ruf on my girls i’ll kick ur a***.
[TAUB]: which one u want? 14 yr or 15, or both? Both is 200?
[DEFENDANT]: What about u how much for u
[TAUB]: not a ? both is 200
[DEFENDANT]: How much for all 3 of u
[TAUB]: I’m not in hun
[DEFENDANT]: U sure this is safe?
[DEFENDANT]: Ok tell me where to come
[TAUB]: what u want?
[DEFENDANT]: Both
[TAUB]: k 14 yr old is shy- so b gentl. No anal, must wear condom
[DEFENDANT]: No anal for sure and condom yes
[DEFENDANT]: If she doesn’t want to she doesn’t have to
[TAUB]: ok 88 and orchard
[DEFENDANT]: Hotel?
[TAUB]: i appreciate that. so just sex? if something else let me tell her
[TAUB]: yes hotel
[DEFENDANT]: On my way[.]’’
The next text exchange began at 11:02 p.m.
“[DEFENDANT]: Ok I’m at exit.
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[TAUB]: ok-we r at holiday inn txt when u r in lot.
[DEFENDANT]: K in lot.
[TAUB]: k room 311
[DEFENDANT]: K[.]”
This text occurred at 11:16 p.m.
¶9 In the video footage captured by the hallway surveillance camera, defendant
exited the elevator. He then walked up and down the hallway for several minutes
before knocking on the door of the “target room” at about 11:20 p.m.
¶ 10 Agent Melissa Siffermann of DHS was the undercover agent waiting in the
“target room” to meet defendant. She posed as the mother of the two minor girls.
When defendant arrived and knocked on the door, she invited him in. The
audiovisual recording of their encounter was played for the jury, and a full
transcript of their conversation was admitted into evidence. See Appendix II.
¶ 11 Siffermann testified that defendant was well dressed and very polite but seemed
nervous. She indicated that defendant was hesitant and expressed his concern that
this was some type of a “setup.” She told defendant that she “likes to meet the guys
first just to make sure that they’re not *** crazy.” In addition, she told defendant
he “look[ed] like a nice guy” and “seem[ed] like a good guy.” Siffermann also told
defendant that, as their mother, she was “ok” with this, that she would “tell them
it’s fine,” and that “they had a little bit of experience but obviously they’re not like,
they’re not pros.” Siffermann testified that defendant stated that, “once a girl has
her period, she’s ready for that kind of thing.” According to Siffermann, defendant
used the term “schizzed.” The term means a person climaxes so intensely as to
defecate on oneself. Defendant also described that the type of sex he would have
with the girls as “porno sex.”
¶ 12 Eventually, defendant put $200 on a nightstand. At that point, around 11:25
p.m., Siffermann proceeded to the bathroom. Seconds later, an arrest team entered
and handcuffed defendant. He stated: “I told her I didn’t want anything to do with
younger, young, young, that’s what I told her.”
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¶ 13 When defendant was searched following his arrest, agents recovered his cell
phone, a box of condoms, and $400. Agents also found an iPad in defendant’s car.
Defendant was then transported to the police station, where he was interviewed by
Aurora police officer Greg Christoffel. Defendant waived his Miranda rights (see
Miranda v. Arizona, 384 U.S. 436 (1966)) and stated that he was in town for work
and was feeling lonely, so he responded to three or four Backpage ads. He told
Christoffel that he received a text message from someone that he believed to be the
mother of 14- and 15-year-old females that were available for sex. He said he
thought it was a typo but continued to respond out of curiosity. Defendant testified
that he had no intention of having sex with underage girls.
¶ 14 Defendant consented to a search of his cell phone and iPad. The cell phone
search revealed that, shortly before responding to the ad at issue here, defendant
sent text messages to three other phone numbers. No inappropriate pictures of
minors, no Internet searches for child pornography, and no evidence that defendant
had tried to solicit a minor for sex on any other occasion were found on defendant’s
electronic devices.
¶ 15 Defendant presented his entrapment defense and testified that, at the time of the
offenses, he was 35 years old and lived in Pennsylvania, where he was the vice
president of sales for a vacation rental company. On the date of the offenses, he was
in town working at the company’s Downers Grove office and was staying at a hotel
in Naperville. After finishing work that evening, defendant returned to the parking
lot of his hotel and remained in his car. He was lonely and depressed because he
and his wife had been separated for the past six months and he had spent the
holidays alone. He began to search the Backpage website on his phone, which he
had learned about from a fellow business traveler.
¶ 16 Defendant went to Backpage’s “adult services” section, checked a box
acknowledging that the section was for adults only, and then clicked on a link that
said “adult escort.” Defendant sent text messages in response to four ads and waited
for a reply. He assumed that the ads involved adults because they were posted in
the adults only section and listed the poster’s age as 18. He testified that, when he
responded to the ads, he was looking for companionship. He was not seeking a
minor and did not know that any of the ads involved minors.
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¶ 17 Defendant stated that, after exchanging a few texts with Taub, it became
apparent to him that there was a sexual agenda. According to defendant, when Taub
mentioned her underage daughters, he replied, and the transcript indicates that he
sent four text messages in response to questions about his interest in minors:
(1) “not interested in minors. You crazy?” (2) “18 is good but nothing under that
too risky”; (3) “What if I just see u. Since your above 18”; and (4) “What about u
how much for u.” Defendant stated that he did not believe that it is okay to have
sex with girls that age. He tried to redirect the conversation and reiterated his
interest in having sex with her, as she was an adult.
¶ 18 He testified that both Taub and Siffermann, while portraying the fictional
mother, made him “feel somewhat comfortable” with the idea of paying for sex
with the underage girls. The text transcript reveals the following statements were
made by Taub: that “as long as u r gentle and treat my girls good,” “I’m here to
protect my girls,” “my girls want 2 do this,” “they have a little bit of experience but
obviously they’re not like, they’re not pros.”
¶ 19 Defendant testified that he had never had any desire as an adult to have sex with
a minor and that he agreed to do so only because the agents “put an idea in [his]
head that was never there before.” He stated that his memory was somewhat
“foggy” about the night. Defendant also explained that, whenever he expressed
reluctance or doubt, the agents diverted the conversation and complimented him.
When asked about his comment that he “think[s] naturally [14- and 15-year-old
girls] are old enough but the law says they are not,” he testified that he meant girls
that age are “capable” of having sex because he went to school with girls who were
pregnant at that age. Defendant stated that, when he told Siffermann and Christoffel
that he came to the hotel because he was curious, he meant “curious about what’s
going on,” not curious about what it would be like to have sex with two underage
girls. He also denied using the term “schizzed.”
¶ 20 Defendant called four character witnesses. His sister, Krista Jackson, testified
that she had never seen any inclination that defendant was interested in or
predisposed to having sex with underage girls. Defendant’s 23-year-old niece,
Tanisha Lewis, testified that she had lived with defendant for a while, that he had
never expressed any interest in having sex with underage girls, and that he had no
predisposition to do so. Kevin Carlson, a longtime friend and coworker, was with
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defendant on the business trip. He testified that defendant had never talked about
underage girls or behaved in a manner that would indicate a predisposition for or
interest in having sex with underage girls. Another longtime friend and coworker,
Adam Kaper, who had attended charity events and vacationed with defendant,
testified that defendant had “never shown any want to be with an underage person.”
¶ 21 B. Entrapment Instruction
¶ 22 Over the State’s objection, the circuit court granted defendant’s motion to
instruct the jury on the defense of entrapment. The court instructed the jury as
follows with defendant’s Illinois Pattern Jury Instruction, Criminal, No. 24-25.04
(4th ed. 2000) (hereinafter IPI Criminal 4th No. 24-25.04):
“It is a defense to the charge made against the defendant that he was
entrapped, that is, that for the purpose of obtaining evidence against the
defendant, he was incited or induced by a public officer to commit an offense.
However, the defendant was not entrapped if he was predisposed to commit
the offense and a public officer merely afforded to the defendant the opportunity
or facility for committing an offense.”
¶ 23 C. Jury Notes During Deliberations
¶ 24 During deliberations, the jury submitted three notes to the court. The first two
notes were received at 12:37 p.m. The first note read: “Legal definition of incited
and induced and predisposed.” The second note concerned a request for certain
transcripts and is not at issue on appeal.
¶ 25 Addressing the first note, the prosecutor stated that she had recently read a
decision (which she did not identify) that held that a defense attorney was not
ineffective for agreeing not to provide further instructions to the jury in response to
a similar question because the words at issue have common terms. The court noted
that the IPI Criminal 4th No. 24-25.04 instructions do not define the terms and that
it was not inclined to provide the jury with dictionary definitions. Defense counsel
voiced no objection and did not submit a definition of any of the terms. The parties
agreed with the court’s proposal to respond: “You have your instructions. Please
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continue to deliberate.” The court handwrote the response on the note and returned
it to the jury.
¶ 26 At 1:05 p.m., the court received a third note from the jury, which stated:
“predisposition—what does this mean—please give defini[tion].” Again, defense
counsel did not object and did not propose that the court further clarify the term
“predisposition.” The court responded by writing on the note: “You have all of the
instructions, please continue to deliberate.” The court then went into recess until
the jury reached a verdict. The jury found defendant guilty of all three offenses.
¶ 27 D. Posttrial Proceedings
¶ 28 Defendant filed a motion for a new trial, claiming inter alia that the State did
not prove beyond a reasonable doubt that he was not entrapped. The court denied
the motion.
¶ 29 Following a sentencing hearing, the circuit court sentenced defendant to six
years’ imprisonment on his conviction of involuntary sexual servitude of a minor
and to two 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.
¶ 30 E. Appellate Court’s Decision
¶ 31 On appeal from his convictions, defendant argued, inter alia, that defense
counsel was ineffective for failing to (1) object to the circuit court’s responses to
two jury notes regarding the legal definition of “predisposed,” (2) object to the
prosecutor’s closing argument mischaracterizing the entrapment defense and the
parties’ relevant burdens of proof, and (3) present defendant’s lack of a criminal
record to the jury. The appellate court agreed. 2020 IL App (2d) 170900, ¶ 59.
¶ 32 The appellate court determined that “predisposition,” as understood in the
entrapment context, focuses on the defendant’s mens rea before the exposure to
government agents: “ ‘ “[P]redisposition is established by proof that the defendant
was ready and willing to commit the crime without persuasion and before his or her
initial exposure to government agents.’ ’ ” Id. ¶ 37 (quoting People v. Bonner, 385
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Ill. App. 3d 141, 146 (2008), quoting People v. Criss, 307 Ill. App. 3d 888, 897
(1999)).
¶ 33 The court reasoned that, to ensure that the jury properly understood the concept
of predisposition despite having twice expressed confusion about it, the circuit
court should have answered the jury’s question with reference to the readily
available explanation of predisposition set forth in Bonner. Id. ¶ 39 (citing Bonner,
385 Ill. App. 3d at 146). Defense counsel’s acquiescence and his failure to provide
the Bonner definition to the court was an error that constituted deficient
performance. Id. The court reasoned that there was no strategic justification for
allowing a confused jury to potentially stray from the proper time frame. Id. ¶ 40.
¶ 34 In addition, relying on People v. Ramirez, 2012 IL App (1st) 093504, ¶ 43, the
court reasoned that defendant’s lack of a criminal record was strong evidence
demonstrating his lack of predisposition. 2020 IL App (2d) 170900, ¶ 43. The court
also held that counsel’s failure to present exculpatory evidence (lack of a criminal
record) was an obvious error and failure to function as defense counsel guaranteed
by the sixth amendment. Id. ¶ 44.
¶ 35 The court observed that, during closing argument, the prosecutor told the jury
that, “ ‘[i]f you find that the police did incite or induce him, then you can look at
the next step,’ ” which was predisposition. Id. ¶ 46. The court found that the State
was attempting to shift its burden of proof to defendant. Id. ¶ 47. The jury did not
have to “find inducement” for defendant’s entrapment defense to prevail; rather,
the State’s evidence had to disprove that defendant was entrapped beyond a
reasonable doubt. Id.
¶ 36 Also, during the closing argument regarding predisposition, the prosecutor
stated that “ ‘what we have to prove is that [defendant] was willing to do this and
the opportunity was there.’ ” Id. ¶ 48. The court explained that the State was
required to prove beyond a reasonable doubt that defendant was willing to commit
the crime without persuasion and before his initial exposure to government agents.
Id. The court determined that defense counsel should have objected to any argument
that failed to pinpoint the proper time frame for the predisposition analysis. Id.
¶ 37 The court recognized that the effect of the State’s burden-shifting inducement
argument and the jury’s confusion over predisposition was further compounded by
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defense counsel’s failure to inform the jury that defendant had no criminal history.
Id. ¶ 58. Additionally, during closing argument, the State told the jurors that the
instructions contained “ ‘a lot of legal words *** that [p]robably a good contract
attorney *** might be able to figure out what they all are.’ ” Id. ¶ 59. The court
found this characterization of the instructions “unfortunate” in that it suggested to
the jurors that the salient terms might be beyond their understanding. Id. The court
held that the cumulative effect of counsel’s errors constituted deficient performance
and rendered the proceeding unreliable under Strickland, 466 U.S. 668. 2020 IL
App (2d) 170900, ¶ 59.
¶ 38 The court reversed defendant’s convictions and remanded the matter to the
circuit court for a new trial. Id. The court assessed the sufficiency of the evidence
to determine whether it sufficed for double jeopardy purposes, and after reviewing
the record in the light most favorable to the State, it concluded that the evidence
was sufficient to support the jury’s verdicts beyond a reasonable doubt. Id. ¶ 60.
We allowed the State’s petition for leave to appeal. Ill. S. Ct. R. 315 (eff. Oct. 1,
2020).
¶ 39 II. ANALYSIS
¶ 40 A. Ineffective Assistance of Defense Counsel
¶ 41 The State argues that the appellate court erred in granting relief on defendant’s
ineffective assistance of counsel claim. Specifically, the State maintains that
defense counsel competently presented defendant’s entrapment defense and,
therefore, could reasonably acquiesce to the circuit court’s responses to the jury
questions regarding the legal definition of predisposed. The State also maintains
that defense counsel reasonably did not object to the prosecutor’s closing argument
because counsel could be confident that the court would correctly instruct the jury
following closing arguments. In addition, the State argues that defense counsel
reasonably believed it was not necessary to introduce evidence of defendant’s lack
of a criminal history because he did elicit testimony that defendant had never been
involved in sex with minors and presented four character witnesses on defendant’s
behalf. Alternatively, the State contends that, based on the strength of its case,
defendant suffered no prejudice because there is no reasonable probability that
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defense counsel’s alleged errors affected the jury’s assessment of inducement and
predisposition.
¶ 42 Defendant responds that defense counsel’s cumulative errors support his claim
of ineffective assistance of counsel. Defendant points out that the appellate court
properly found that he was prejudiced by defense counsel’s errors in presenting his
entrapment defense. Defendant requests cross-relief, arguing (1) that the State
failed to prove beyond a reasonable doubt that he was not entrapped into
committing the offenses, (2) that he was not guilty of involuntary sexual servitude
of a minor where that statute applies to sex traffickers, not to patrons, and (3) his
conviction and sentence for involuntary sexual servitude of a minor should be
vacated because the statute violated the proportionate penalties clause of the Illinois
Constitution.
¶ 43 1. The Strickland Standard
¶ 44 The United States and Illinois Constitutions guarantee criminal defendants the
right to the effective assistance of counsel. U.S. Const., amends. VI, XIV; Ill. Const.
1970, art. I, § 8; Strickland, 466 U.S. at 685-86; People v. Albanese, 104 Ill. 2d 504,
525-26 (1984). Claims that counsel provided ineffective assistance are evaluated
under the familiar two-pronged standard set forth in Strickland, 466 U.S. at 687-
88. To prevail on an ineffective assistance of counsel claim, a defendant must show
that (1) counsel’s performance fell below an objective standard of reasonableness
and (2) counsel’s deficient performance resulted in prejudice. Id. at 687. Under the
first prong, defendant must overcome the presumption that, under the
circumstances, the challenged action might be considered sound trial strategy. Id.
at 689. Strickland instructs that counsel is strongly presumed to have rendered
adequate assistance and made all significant decisions in the exercise of reasonable
professional judgment. Id. at 690.
¶ 45 2. Strickland Prejudice
¶ 46 “In assessing prejudice under Strickland, the question is not whether a court can
be certain counsel’s performance had no effect on the outcome or whether it is
possible a reasonable doubt might have been established if counsel acted
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differently.” People v. Johnson, 2021 IL 126291, ¶ 54 (quoting Harrington v.
Richter, 562 U.S. 86, 111 (2011)). Instead, Strickland asks whether it is “reasonably
likely” the result would have been different. Strickland, 466 U.S. at 696. A
defendant must show that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different. Id. at
693. A reasonable probability is a probability sufficient to undermine confidence
in the outcome. Id. at 694. Strickland requires a defendant to “affirmatively prove”
that prejudice resulted from counsel’s errors. Id. at 693.
¶ 47 3. Standard of Review
¶ 48 The performance and prejudice components of an ineffective assistance inquiry
present mixed questions of law and fact. However, our standard of review for
determining whether a defendant’s sixth amendment right to the effective
assistance of counsel was denied is ultimately de novo. Johnson, 2021 IL 126291,
¶ 52 (citing People v. Hale, 2013 IL 113140, ¶ 15).
¶ 49 4. Relevant Statutory Provisions
¶ 50 (a) Trafficking
¶ 51 Section 10-9(c)(2) of the Code provides:
“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[.]” 720 ILCS 5/10-9(c)(2).
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¶ 52 (b) Entrapment
¶ 53 Section 7-12 of the Code provides:
“A person is not guilty of an offense if his or her conduct is incited or
induced by a public officer or employee, or agent of either, for the purpose of
obtaining evidence for the prosecution of that person. However, this Section is
inapplicable if the person was pre-disposed to commit the offense and the
public officer or employee, or agent of either, merely affords to that person the
opportunity or facility for committing an offense.” (Emphasis added). Id. § 7-
12.
¶ 54 B. Defense Counsel’s Ineffectiveness
¶ 55 We now turn to the State’s contention that defense counsel was effective where
he (1) did not offer a definition of “predisposed” in response to the jury’s first and
third notes asking for a legal definition, (2) did not object to the prosecutor’s closing
argument explaining the relationship between the inducement and predisposition
elements, and (3) did not present evidence of defendant’s lack of a criminal record
to the jury. We disagree.
¶ 56 1. Defense Counsel Erred When He Failed to Insist
That the Court Provide the Legal Definition of
Material Terms in the Entrapment Instruction in
Response to the Jury’s Questions
¶ 57 The State contends that defense counsel reasonably did not offer a definition of
“predisposed” in response to the jury’s requests for clarification. The State
maintains that counsel could have concluded that considering the time frame
between defendant’s initial exposure to the government agents and his commission
of the crimes, advising the jury of the temporal focus of predisposition was
unnecessary. The State further contends that a definition was unwarranted because
the pattern jury instructions did not include a definition of “predisposed,” where it
has a commonly understood meaning.
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¶ 58 Generally, jurors are entitled to have their questions answered. People v. Childs,
159 Ill. 2d 217, 228 (1994); People v. Reid, 136 Ill. 2d 27, 39 (1990). When the
jury asks a question on a point of law, when the original instructions are incomplete,
or when the jurors are manifestly confused, the court has a duty to answer the
question and clarify the issue in the minds of the jurors. Childs, 159 Ill. 2d at 229;
Reid, 136 Ill. 2d at 39. Further, under certain circumstances, a circuit court has the
duty to answer a jury’s question even if the jury received proper instructions. Reid,
136 Ill. 2d at 39 (citing People v. Flynn, 172 Ill. App. 3d 318, 323 (1988)). When a
jury makes explicit its difficulties, the court should resolve them with specificity
and accuracy. Bollenbach v. United States, 326 U.S. 607, 612-13 (1946); People v.
Caballero, 102 Ill. 2d 23, 42 (1984). The failure to answer or the giving of a
response that provides no answer to the question of law posed has been held to be
prejudicial error. Childs, 159 Ill. 2d at 229; People v. Shannon, 206 Ill. App. 3d
310, 317 (1990) (finding circuit court’s abuse of discretion by choosing not to
respond to jury’s confusion regarding the charges against defendant arising from
the facts); People v. Bryant, 176 Ill. App. 3d 809, 812-13 (1988) (trial court erred
by failing to properly exercise its discretion when it refused a jury request for a
copy of the trial transcript); Flynn, 172 Ill. App. 3d at 324 (holding that, where the
jury expressed confusion on points of law and the court did not clarify the questions
in the minds of the jurors, the court’s action prejudiced and deprived the defendant
of a fair trial and was reversible error); People v. Brouder, 168 Ill. App. 3d 938,
946-48 (1988) (same).
¶ 59 We observe that in People v. Landwer, 279 Ill. App. 3d 306, 315-16 (1996), an
entrapment case, the jury requested the definition of the word “originated.” The
court noted that the word “originated” appeared in the pattern instruction that was
given to the jury and in the statute defining the entrapment defense. The appellate
court observed that courts have previously held that a jury’s request for a definition
of a word contained in a jury instruction is a question of law. Id. at 316 (citing
People v. Kamide, 254 Ill. App. 3d 67, 72 (1993), and People v. Lovelace, 251 Ill.
App. 3d 607, 619 (1993)). The court recognized that, although the legal definition
and the common meaning of “originated” are the same, this did not transform the
question into one of fact. Id. at 315. The court explained that, while the meaning of
the word “originated” may seem obvious to us, the record clearly indicates that the
jurors were, indeed, confused. Id. The court held that the trial court’s error was not
harmless. Id. at 317.
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¶ 60 Similarly, in the case under review, during its deliberations, the jury sent its
first written question to the court that read, “Legal definition of incited and induced
and predisposed.” The court noted that the IPI Criminal 4th No. 24-25.04
instructions did not define the terms, and it declined to provide the jury with
dictionary definitions. Defense counsel did not tender a definition of the terms or
object. In fact, defense counsel acquiesced to the court’s response: “You have all
of your instructions, please continue to deliberate.” Just under 30 minutes later, the
jury, in a third written question, again asked, “Predisposition—what does this
mean—please give definition.” Again, defense counsel did not object or tender the
“legal definition” of predisposition as set forth in Bonner. According to Bonner,
predisposition means whether the defendant was willing to commit the crime before
the defendant’s initial exposure to government persuasion. Bonner, 385 Ill. App.
3d at 146. The court repeated its response that “[y]ou have all of the instructions,
please continue to deliberate.”
¶ 61 The State contends that defense counsel’s acquiescence to the circuit court’s
responses was objectively reasonable considering the decision in People v.
Sanchez, 388 Ill. App. 3d 467 (2009). In Sanchez, the appellate court determined
that, when words in a jury instruction have a commonly understood meaning, the
court need not define them with additional instructions, especially where the pattern
jury instructions do not state that an additional definition is necessary. Id. at 477-
78. The Sanchez jury asked for the definitions of “predisposed,” “incite,” and
“induce,” and the appellate court found that counsel was effective for agreeing to
the court’s response that the jury had been given all the instructions and to continue
deliberating. Id. The court also found that the definitions were unnecessary because
defendant’s entrapment defense lacked merit. Id. at 475. We find the State’s
reliance on Sanchez is misplaced.
¶ 62 In Sanchez, the defendant was charged with possession of a controlled
substance with intent to deliver. Id. at 474. The defendant raised the defense of
entrapment. Id. However, the State rebutted the entrapment defense with the
admissions the defendant made in his written confession, with his testimony at trial,
and with the affidavit attached to his pretrial motion, which showed the defendant
was willing and able to commit the offense without persuasion before his initial
exposure to government agents. Id. After addressing the evidence of the defendant’s
predisposition, the court determined that the evidence was not close and that his
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entrapment defense was without merit. Id. at 475. The Sanchez court resolved the
ineffective assistance claim based on the facts in that case, which established that
the defendant had a predisposition to sell drugs without government persuasion. Id.
We agree with the appellate court’s reasoning that Sanchez did not address the
distinction between the common understanding of predisposed and its narrower
meaning in criminal entrapment cases, which require the jury to consider the
temporal issues associated with predisposition: the conduct of the defendant prior
to making contact with the government agents. 2020 IL App (2d) 170900, ¶ 39.
Because the defendant here had a viable entrapment defense since he had no
criminal history and no predisposition to commit the offenses, we find the facts are
different and Sanchez should not be followed.
¶ 63 In addition, it should be noted that the jury made a request for the definition of
“incited” and “induced.” It should be further noted that both terms appear in section
7-12 of the Code (720 ILCS 5/7-12 (West 2014)) and in the entrapment instruction
(IPI Criminal 4th No. 24-25.04). By requesting a “legal definition,” the jury was
making it explicitly clear that it was having difficulty understanding the material
terms in the instruction. See Bollenbach, 326 U.S. at 612-13. The terms must be
understood in order for the jury to determine whether the government entrapped a
defendant. Once defendant testified and presented his entrapment defense and the
jury was given the IPI Criminal 4th No. 24-25.04, the jury, in order to find the
defendant guilty beyond a reasonable doubt, was required to determine (1) whether
the State “incited” or “induced” defendant to commit the offenses and (2) whether
defendant was “predisposed” to commit the offenses and the government merely
afforded him the opportunity to commit the offenses.
¶ 64 The term “predisposed” focuses upon whether the defendant was an “unwary
innocent” or instead an “unwary criminal” who readily availed himself of the
opportunity to perpetrate the offense. Mathews v. United States, 485 U.S. 58, 63
(1988) (citing United States v. Russell, 411 U.S. 423, 433, 436 (1973); Sherman v.
United States, 356 U.S. 369, 372 (1958)). Predisposition is measured prior to the
government’s attempts to persuade the defendant to commit the crime. Jacobson v.
United States, 503 U.S. 540, 553 (1992); United States v. Kaminski, 703 F.2d 1004,
1008 (7th Cir. 1983) (finding that predisposition is, by definition, the defendant’s
state of mind and inclination before exposure to government action). Therefore, the
determination of predisposition is based on whether defendant was ready and
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willing to commit the crime without persuasion and before his initial exposure to
government agents. Bonner, 385 Ill. App. 3d at 146; Criss, 307 Ill. App. 3d at 897.
¶ 65 Thus, the relevant time frame for assessing a defendant’s predisposition comes
before he has had any contact with government agents and focuses on the evidence
of defendant’s conduct and state of mind prior to his contact with the officers.
Jacobson, 503 U.S. at 553; United States v. Poehlman, 217 F.3d 692, 703 (9th Cir.
2000). While conduct and statements made by a defendant after contact by
government agents may be relevant in determining defendant’s predisposition, the
critical temporal focus is defendant’s conduct and state of mind prior to government
contact. Jacobson, 503 U.S. at 553; Kaminski, 703 F.2d at 1008; Poehlman, 217
F.3d at 704-05 (finding that only those statements that indicate a state of mind
untainted by the government’s inducement are relevant to show predisposition);
Bonner, 385 Ill. App. 3d at 146.
¶ 66 In the case at bar, the relevant temporal time frame involves defendant’s
conduct and statements prior to texting or making contact with the government
agents. Thus, in order to determine whether defendant was predisposed to commit
the crimes, the jury should have focused on evidence of defendant’s conduct and
state of mind prior to responding to the government’s ad soliciting dates for an 18-
year-old woman. While defendant presented evidence that, prior to exchanging text
messages with the government, (1) he had no images of minors on his cell phone,
(2) he had no images of minors on his computer, and (3) four character witnesses
testified he exhibited no interest in having sex with minors, his attorney failed to
present evidence that he had no criminal record.
¶ 67 Although the term “predisposed” has a common meaning, the record clearly
establishes that there were two jury questions that requested a definition for
predisposed. Two jury questions within a span of 28 minutes indicate that the jurors
were confused and should have been provided with a “legal definition.” See Childs,
159 Ill. 2d at 229; Landwer, 279 Ill. App. 3d at 315; Kamide, 254 Ill. App. 3d at 72;
Brouder, 168 Ill. App. 3d at 946-48 (when a jury manifests confusion or doubt, it
is the trial court’s duty to reinstruct on any question of law giving rise to that doubt
or confusion). Finally, two jury questions requesting a definition for three material
words in the entrapment instruction make it explicit that the jury was having
difficulty with the two questions that were presented in the instruction: (1) did the
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government incite or induce defendant, and (2) was defendant predisposed to
commit the offense before being subjected to the government agent’s influence?
¶ 68 Additionally, the prosecutor stated in closing that the entrapment instruction
contained “legal words” that only a good contract attorney would understand. This
remark added to the jury’s confusion leading to their questions for “legal
definitions.” See People v. Lowry, 354 Ill. App. 3d 760, 768 (2004) (citing Childs,
159 Ill. 2d at 228-29 (holding that failing to respond to a question asked by a jury,
or responding in a way that fails to answer the question, may be as prejudicial as a
response that is inaccurate, misleading, or likely to direct a verdict one way or
another)); see also People v. Coots, 2012 IL App (2d) 100592, ¶ 45 (holding that
reversible error can occur when the jury asks the court to define a key term used in
the instructions and the court refuses the request).
¶ 69 As the appellate court observed, there is no strategic basis for allowing a
confused jury to potentially stray from the proper time frame—the time before
defendant’s exposure to government agents’ persuasion—in deciding whether
defendant was predisposed to commit the offenses he otherwise admitted
committing. 2020 IL App (2d) 170900, ¶ 40. Additionally, we find that there can
be no trial strategy in allowing legal terms to go undefined when a jury is confused
and shows a lack of understanding of the legal terms in the entrapment instruction
that must be analyzed to determine whether the State met its burden of establishing
that defendant was not entrapped. See Lowry, 354 Ill. App. 3d at 766 (finding that
counsel’s agreeing that no additional instruction was needed in response to a
confused jury’s question, because the term has a plain meaning within the jury’s
common knowledge, cannot be excused as mere trial strategy).
¶ 70 The jury’s two notes, sent in quick succession, established that it was confused
and in need of the court’s guidance. Counsel erred when he failed to ask the court
to define the legal terms in the jury’s questions to alleviate their confusion, and
counsel’s error resulted in the jury being improperly instructed on how to apply the
legal terms to the facts and prevented them from analyzing the evidence to
determine defendant’s guilt.
¶ 71 We find that the court’s responses to the jury’s questions were prejudicial error
and an abuse of the court’s discretion. See Childs, 159 Ill. 2d at 229 (finding that
the giving of a response that provides no answer to the question of law posed has
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been held to be prejudicial error); Reid, 136 Ill. 2d at 39 (finding that under certain
circumstances, a court has the duty to answer a jury’s questions). Accordingly,
defense counsel’s acquiescence and failure to challenge the court’s answers to the
jury’s questions was one of multiple errors that substantiates defendant’s
ineffective assistance of counsel claim.
¶ 72 2. Defense Counsel Erred When He
Failed to Object to the State’s Closing
Argument That Misstated the Issues to
Be Analyzed by a Jury in an Entrapment Case
¶ 73 The State contends that defense counsel reasonably did not object to the
prosecutor’s closing argument concerning the relationship between the inducement
and the predisposition elements of an entrapment defense. In the State’s view, to
the extent that the comments could be interpreted as implying that defendant had to
prove that he was induced, rather than requiring the State to prove defendant was
not induced, defense counsel could be confident that the court would correctly
instruct the jury following closing arguments. In addition, the State maintains that
its closing argument reflected that an entrapment defense consists of two separate
elements: (1) government incitement and (2) defendant’s lack of predisposition to
commit the crime. According to the State, it may rebut the entrapment defense by
proving either (1) that defendant was not induced to commit the offense or (2) that
he was predisposed to do so. However, once defendant sufficiently raises an
entrapment defense, the entrapment statute requires the State to prove (1) defendant
was predisposed and (2) the government agents merely afforded him the
opportunity or facility for committing the offenses. 720 ILCS 5/7-12 (West 2014).
¶ 74 The State relies on United States v. Mayfield, 771 F.3d 417, 434-35 (7th Cir.
2014), to support its contention that courts that have interpreted the similar
entrapment defense under federal law have held that inducement means
government solicitation of the crime plus some other government conduct. This
creates a risk that a person who would not commit the crime if left to his own
devices will do so in response to the government’s efforts. The State contends that
the Mayfield court correctly found that the government can defeat an entrapment
defense by proving that the defendant was predisposed to commit the crime or that
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there was no government inducement. See id. at 440. We find that the State’s
reliance on Mayfield is misplaced.
¶ 75 First, we observe that, as a general principle, decisions of the United States
district courts and the circuit courts of appeals are not binding upon state courts.
People v. Fields, 135 Ill. 2d 18, 72 (1990). Second, we observe that the Mayfield
decision was not addressing the government’s burden after it had shifted to them at
trial but was addressing whether the defendant had met his burden by presenting
evidence of entrapment thereby entitling him to a jury instruction on entrapment.
Id. at 420.
¶ 76 The United States Supreme Court announced the majority view that a valid
entrapment defense has two related elements: (1) government inducement of the
crime and (2) a lack of predisposition on the part of the defendant to engage in the
criminal conduct. Mathews, 485 U.S. at 63 (citing Russell, 411 U.S. at 435-36, and
Sorrells v. United States, 287 U.S. 435 (1932)). Although the defense has two key
elements—government inducement and lack of predisposition—the elements are
conceptually related. Id.; Sherman, 356 U.S. at 372-73. The two elements of the
entrapment defense are related in that inducement is evidence bearing on
predisposition: the greater the inducement, the weaker the inference that the
defendant was predisposed to commit the crime. Russell, 411 U.S. at 430-32.
¶ 77 Illinois holds the same view that a valid entrapment defense consists of
government incitement of the crime and a lack of predisposition on the part of the
defendant. People v. Placek, 184 Ill. 2d 370, 380-81 (1998); People v. Cross, 77
Ill. 2d 396, 405 (1979). In addition, section 7-12 of the Code provides that
entrapment “is inapplicable if the person was predisposed to commit the offense
and the [government agent] merely affords to that person the opportunity or facility
for committing an offense.” (Emphasis added.) 720 ILCS 5/7-12 (West 2014).
Thus, the State was required to rebut defendant’s entrapment defense by presenting
evidence that (1) defendant was predisposed to commit the offenses and (2) the
government agents merely afforded to him the opportunity or facility for
committing the offenses. See id.¶ 78 We find that the prosecutor’s closing argument was misleading and the jury was
confused, as evidenced by its three questions. The prosecutor stated that, “if you
find that the police did incite or induce [defendant], then you can look at the next
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step,” indicating predisposition. Here, the court found that defendant had presented
sufficient evidence of the government’s incitement and inducement to give the
entrapment instruction, which shifted the burden to the State to rebut the entrapment
defense with evidence that (1) defendant was predisposed to commit the offenses
and (2) the government agents merely afforded to him the opportunity or facility
for committing the offenses. See id. When addressing whether defendant was
predisposed, one of the factors to be considered includes the type and nature of the
inducement, as well as the manner in which it was applied. Ramirez, 2012 IL App
(1st) 093504, ¶ 38. Once defendant presented his entrapment defense, the State had
to prove (1) defendant’s predisposition to commit the offenses and (2) the
government agents merely afforded to him the opportunity or facility for
committing the offenses. See Mathews, 485 U.S. at 62-63 (holding that a valid
entrapment defense has two related elements: government inducement and a lack
of predisposition on the part of the defendant to engage in the criminal conduct
(citing Sorrells, 287 U.S. 435)).
¶ 79 In addition, the prosecutor stated in closing that “what we have to prove is that
defendant was willing to do this, and the opportunity was there.” This misstatement
of the predisposition element omitted reference to the temporal focus of the analysis
and created the danger that the jury would not be directed to the critical time frame:
defendant’s conduct during the period prior to the government’s posting the ad and
exchanging text messages to persuade defendant to commit the crimes.
Consequently, by failing to object to the State’s closing argument, defense counsel
permitted the State to mislead the jury about what it had to prove to establish
defendant’s guilt beyond a reasonable doubt. Accordingly, defense counsel’s
second error prejudiced defendant and further substantiates his claim of ineffective
assistance of counsel.
¶ 80 3. Defense Counsel Erred When He Failed to
Present Evidence That Defendant Had No
Criminal Record, Which Would Have Corroborated
Defendant’s Claim That He Was Not
Predisposed to Commit the Offenses
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¶ 81 The State argues that defense counsel reasonably believed it was not necessary
to introduce evidence of defendant’s lack of criminal history because defendant did
elicit testimony that he had never been involved or attempted to have sex with
minors and he presented four character witnesses who testified about defendant’s
good character. In addition, there was evidence at trial that defendant’s cell phone
and computer showed no signs of searches for sex with minors or pornographic
images.
¶ 82 It is well established that a defendant’s prior criminal record or lack thereof is
among the factors that are most relevant in assessing a defendant’s predisposition
to commit an offense. Ramirez, 2012 IL App (1st) 093504, ¶ 43; Criss, 307 Ill. App.
3d at 897-98. Although there was evidence that defendant had no history of
involvement with or attempting to have sex with minors, informing the jury that
defendant also had no criminal history was direct evidence that would have
corroborated defendant’s argument to the jury that he was not predisposed to
commit the charged offenses or any other offense before meeting the government
agent in the hotel room. Defendant’s lack of a criminal record was compelling
evidence showing his lack of predisposition, and counsel’s error in failing to present
this evidence was objectively unreasonable because it prevented the jury from
considering evidence that established defendant’s entrapment defense: that he was
not predisposed to have sex with minors. See Criss, 307 Ill. App. 3d at 899 (holding
that the trial court erred in excluding evidence of defendant’s lack of a criminal
record). Finally, it is axiomatic that good trial strategy does not exclude exculpatory
evidence.
¶ 83 C. Strickland Prejudice Resulted From
Counsel’s Cumulative Errors, Which
Constituted Deficient Performance and
Established His Ineffectiveness
¶ 84 Defendant was prejudiced by defense counsel’s three errors, which constituted
deficient performance. Strickland prejudice is defined as “a reasonable probability
that, but for counsel’s unprofessional errors, the results of the proceeding would
have been different.” Strickland, 466 U.S. at 694. The appellate court succinctly
stated that
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“the effect of the State’s burden-shifting inducement argument and the jury’s
confusion over predisposition was further compounded by defense counsel’s
failure to inform the jury that defendant had no criminal history—a fact that
would have bolstered the argument that defendant was not predisposed to
commit the offenses before his exposure to government agents.” 2020 IL App
(2d) 170900, ¶ 58.
¶ 85 The cumulative effect of defense counsel’s three errors established his deficient
performance: (1) allowing jury confusion by failing to provide the legal definitions
of material terms in the entrapment instruction, (2) failing to object to the State’s
closing argument that misstated the issues to be decided by the jury in the
entrapment instruction, and (3) failing to present evidence of defendant’s lack of a
criminal history that would have established that defendant was not predisposed to
commit the offenses, an issue in the entrapment instruction. Counsel’s three errors
prejudiced defendant and rendered the jury’s deliberations and verdict unreliable
under Strickland, 466 U.S. at 685-86. 2020 IL App (2d) 170900, ¶ 59.
¶ 86 D. The State’s Alternative Arguments Lack Merit
¶ 87 Alternatively, the State maintains that, based on the strength of its case,
defendant suffered no prejudice from defense counsel’s alleged errors. The State
insists that the evidence demonstrated (1) that defendant was not induced to commit
the charged offenses and (2) that the evidence established that defendant was
predisposed to commit the charged offenses because he was ready and willing to
commit the crimes without government persuasion.
¶ 88 1. Whether Defendant Was Induced to Commit
the Charged Offenses Is a Question of Fact for a
Properly Instructed Jury
¶ 89 The State maintains that the evidence demonstrated that defendant was not
induced to commit the charged offenses because the government agents involved
in the sting operation did no more than initiate and afford defendant the opportunity
to commit the offenses. The State contends that the time frame, from introduction
of the offenses until defendant’s capitulation, is evidence that government agents
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did not induce defendant. The State points out that defendant’s text exchanges with
Taub and conversations with Siffermann do not constitute the type of government
conduct that is typically deemed inducement. We disagree.
¶ 90 The State relies on Jacobson, 503 U.S. at 553, and Poehlman 217 F.3d at 702,
for the proposition that a longer time frame and continuous interaction over an
extended period is necessary to establish inducement. In Jacobson, 503 U.S. at 553,
the government conceded inducement in a child pornography prosecution where
undercover agents devoted 30 months to convince the defendant that he had the
right to engage in behavior proscribed by law. In Poehlman, over the course of six
months and numerous e-mail messages, an undercover agent played on the
defendant’s need for an adult relationship and manipulated him into agreeing to
serve as a sexual mentor to her underage daughters and have sexual relationships
with them. 217 F.3d at 699-700.
¶ 91 The amount of time the government interacts with a defendant is not
determinative of whether the government incited or induced the defendant to
commit a crime. In fact, in Sorrells, 287 U.S. at 439-40, the relevant time frame
from introduction of the crime by a government agent to commission by the
defendant did not exceed 90 minutes. In Sorrells, a prohibition agent, after
confirming that both he and the defendant were veterans of World War I, asked if
the defendant could get him some liquor, and the defendant stated that he did not
have any. Id. at 439. The agent asked again without result. After another request,
the defendant left and returned with liquor. Id. The agent was at the defendant’s
home for an hour to an hour and a half. Id. at 439-40. The Supreme Court
determined that the act for which the defendant was prosecuted was instigated by
the prohibition agent, that the defendant had no previous disposition to commit it
but was a law-abiding citizen, and that the agent lured the defendant, otherwise
innocent, to its commission by repeated and persistent solicitation. Id. at 441. We
find that it is the nature and extent of the government solicitation that is relevant in
an entrapment case and not just the passage of time.
¶ 92 Here, the government set up a sting, and the ad used in the sting was a picture
of an 18-year-old who was available for sex. The government agents employed a
bait-and-switch tactic: a picture of an 18-year-old woman was used in the ad to
induce defendant to discuss having sex with minors. Defendant responded to the ad
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by indicating at least four times that he was not interested in having sex with minors
but was interested in sex with an adult: (1) “not interested in minors. You crazy?”
(2) “18 is good but nothing under that too risky”; (3) “What if I just see u. Since
your above 18”; and (4) “What about u how much for u.” In spite of defendant’s
text messages that he did not want to have sex with minors, the State did not adhere
to its protocol to discontinue texting with people who, like defendant, texted that
they were looking for an adult.
¶ 93 Defendant sent several text messages, all relating to adult companionship, and
although it has long been accepted that agents may use artifice to catch those
engaged in criminal ventures, here, defendant’s request for an 18-year-old adult
was ignored by the agents. See Sorrells, 287 U.S. at 445; People v. Outten, 13 Ill.
2d 21, 24 (1958) (finding that entrapment constitutes a valid defense if the officers
inspire, incite, persuade, or lure the defendant to commit a crime that he otherwise
had no intention of perpetrating). To overcome first defendant’s refusal, then his
reluctance, then his hesitancy to achieve capitulation, government agents made
several offers, going so far as to deceive him that the underage girls’ mother was
making the offer. In addition, starting with texts at 10:02 and 24 minutes later, at
10:26, defendant asks how much for you (the mother), and Taub rebuffed his
interest and returned to the underage minors. See People v. Kulwin, 229 Ill. App.
3d 36, 40 (1992) (finding that defendant’s reluctance to engage in criminal activity
was overcome by repeated government inducement); Poehlman, 217 F.3d at 701.
¶ 94 Here, the government’s use of subterfuge, deceitful representation, and coercive
tactics shown by the numerous texts and interactions between law enforcement
agents and defendant may have created the risk and established that defendant
would not commit the crimes if left to his own devices but did so in response to the
government’s inducement. See Sorrells, 287 U.S. at 441 (an agent asked for liquor
and was twice refused, but upon asking a third time the defendant finally
capitulated, and the Supreme Court found that the defendant was entrapped).
¶ 95 The question for the jury in this case was whether defendant with no prior
criminal history and no history of engaging in sexual relations with minors is incited
or induced by the government when he is solicited in a sting operation with an ad
containing a picture of an 18-year-old but, upon making contact with the
government, is encouraged to engage in sexual activity with minors.
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¶ 96 We reject the State’s contention that the evidence demonstrated that defendant
was not induced and find that defendant has presented sufficient evidence that he
was induced by the government’s agents. Thus, whether defendant was incited or
induced by the government’s agents to commit the charged offenses is a question
of fact for a properly instructed jury: a jury that received the legal definitions for
the words “incited,” “induced,” and “predisposed.”
¶ 97 2. Whether Defendant Was Predisposed to
Commit the Charged Offenses Is a Question of
Fact for a Properly Instructed Jury
¶ 98 The State maintains that the evidence established that defendant was ready and
willing to commit the crime without persuasion and before his initial exposure to
government agents. The State contends that evidence of defendant’s conduct after
the initial contact by government agents remains relevant to the determination of
predisposition. Although the State initiated the discussion about sex with minors,
in the State’s view, defendant’s comments in the hotel between him and
Siffermann, that he believed that “14 and 15 year-old girls were old enough to have
sex” and the type of sex he would have with the girls as “porno sex,” are evidence
of his predisposition to commit the charged offenses. The State argues that the
government used minimal inducement and that defendant’s slight expression of
hesitation supports that defendant was predisposed to commit the offenses.
¶ 99 There are six factors to be considered in determining whether a defendant was
predisposed to commit a crime: (1) the character of the defendant, (2) defendant’s
lack of a criminal record, (3) whether the defendant had a history of criminal
activity for profit, (4) whether the government initiated the alleged criminal
activity, (5) the type of inducement or persuasion applied by the government or the
way in which it was applied, and (6) whether the defendant showed hesitation in
committing the crime, which was only overcome by repeated persuasion. Ramirez,
2012 IL App (1st) 093504, ¶ 38.
¶ 100 The evidence of the first factor favors defendant because (1) four character
witnesses, his sister, his niece, and two coworkers who knew defendant, testified
that he never said or acted in a way that indicated he was inclined or predisposed
to having sex with minors; (2) there was no evidence in his computer that he had
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inappropriate pictures of minors or Internet searches for child pornography;
(3) there was no evidence in his phone that he had inappropriate pictures of minors
or Internet searches for child pornography; and (4) there was no evidence that he
previously tried to solicit a minor for sex.
¶ 101 The State counters defendant’s character evidence by pointing to defendant’s
statements that “naturally they are old enough” but the “law says they are not” and
that, “once a girl has her period, she’s ready for that kind of thing.” The State
maintains that these statements indicate that defendant’s character was predisposed
and susceptible to having sex with minors.
¶ 102 We find, and the State agrees, that the second, third, and fourth factors favor
defendant. Defendant does not have a criminal record and does not have a history
of engaging in criminal activity for profit, and the government initiated the alleged
criminal activity and constructed the sting operation with a picture of an 18-year-
old female to incite or induce individuals to begin a text discussion about having
sex with minors.
¶ 103 The fifth factor, the type of inducement or persuasion applied by the
government, as previously stated, may have crossed the line and entrapped
defendant. Here, the State maintains that the amount of inducement in this case was
“exceedingly minimal.” We observe that defendant’s eventual capitulation may
have been in response to the government’s numerous texts and repeated attempts at
persuasion. Taub and Siffermann continually diverted defendant by complimenting
him and assuring him that it was okay, and by telling him that the minors wanted
to participate. The government agents also incited and induced defendant and
sanctioned the illegal activity by holding themselves out as the minors’ parent who
consented to this illegal activity. The agents’ parental consent may have contributed
to defendant’s decision to consider engaging in sexual activity with minors. See
Russell, 411 U.S. at 429 (finding that to establish whether entrapment has been
established, a line must be drawn between the trap for the unwary innocent and the
trap for the unwary criminal); Jacobson, 503 U.S. at 548 (holding that government
agents may not originate a criminal design, implant in an innocent person’s mind
the disposition to commit a criminal act, and then induce commission of the crime
so that the government may prosecute); Sorrells, 287 U.S. at 445 (same).
- 30 -
¶ 104 Regarding the sixth factor, the State maintains that defendant’s hesitation was
not in relation to having sex with minors but rather focused on the possibility of
being set up and arrested. The State finds support in defendant’s comments that he
was (1) “just nervous, like a set up or something,” (2) “when you’re telling me their
ages, I’m like this sounds like they’re trying to like lure somebody in,” and
(3) “leave me alone with my pants down and somebody might come in or
something,” and he was nervous just saying their ages. Although, defendant’s
reluctance may have been the result of caution, the fact remains that his earliest
messages, which are the most indicative of his preexisting state of mind, showed
he declined the offer of sex with minors and offered on two occasions to have sex
with the adult texter: (1) “not interested in minors. You crazy?”; (2) “18 is good but
nothing under that too risky”; (3) “What if I just see u. Since your above 18”; and
(4) “What about u how much for u.” Defendant also said that he was “not like even
into that.”
¶ 105 We acknowledge that, under the totality of the circumstances, defendant’s
ultimate acquiescence in paying for sex with two minors must be considered.
However, because defendant had no criminal history or involvement with minors,
his acquiescence could have been the consequence of the government’s persuasive
incitement or inducement. In addition, there is no requirement that defendant
demonstrate an attempt to withdraw once induced into committing the offenses.
People v. Poulos, 196 Ill. App. 3d 653, 663 (1990). In fact, the entrapment statute
makes it clear that “[a] person is not guilty of an offense if his or her conduct is
incited or induced.” 720 ILCS 5/7-12 (West 2014). The agents, acting as the
minors’ mother, continually indicated that this was alright, that the minors had done
it before, that they wanted to do it, and that defendant was “not crazy” or a “creep”
for agreeing to engage in this criminal conduct. See Jacobson, 503 U.S. at 553-54(determining that, when the government’s quest for convictions leads to the
apprehension of an otherwise law-abiding citizen who, if left to his own devices,
likely would have never run afoul of the law, the courts should intervene).
¶ 106 Defendant’s predisposition evidence established (1) no criminal background,
(2) no criminal history of interacting with minors, and (3) no minors’ pictures on
his phone or computer prior to texting with the government. Therefore, we reject
the State’s contention that the evidence established that defendant was predisposed
to commit the offenses and find that defendant presented sufficient evidence that
- 31 -
he may not have been ready and willing to commit the crimes without government
persuasion. Accordingly, we find that whether defendant was predisposed to
commit the offenses prior to interacting with the government is a question of fact
for a properly instructed jury.
¶ 107 III. CONCLUSION
¶ 108 In summary, we find that defense counsel erred where he (1) acquiesced to the
circuit court’s responses to the jury questions regarding the “legal definition” of
“incited,” “induced,” and “predisposed,” which are material terms in the
entrapment instruction; (2) after presenting defendant’s entrapment defense, did not
object to the State’s closing argument that misstated the State’s burden on two
issues to be analyzed and considered by the jury in the entrapment instruction:
(a) the government’s incitement and inducement of defendant and (b) defendant’s
predisposition to commit the offenses because the government merely afforded him
the opportunity; and (3) failed to present evidence of defendant’s lack of a criminal
record, which addresses whether defendant was predisposed, an issue in the
entrapment instruction. We hold that Strickland prejudice resulted from defense
counsel’s cumulative errors, which constituted deficient performance and
established his ineffectiveness, rendering the jury deliberations and verdict
unreliable. Accordingly, we reverse defendant’s convictions and remand the cause
to the circuit court for a new trial.
¶ 109 In addition, we must review the sufficiency of the evidence to determine
adequacy for double jeopardy purposes. After reviewing the evidence in the light
most favorable to the State, we conclude that the evidence is sufficient to support
the jury’s verdicts beyond a reasonable doubt. Because we remand for a new trial,
we need not address defendant’s request for cross-relief.
¶ 110 Appellate court judgment affirmed.
¶ 111 Circuit court judgment reversed and remanded.
¶ 112 JUSTICE MICHAEL J. BURKE, dissenting:
- 32 -
¶ 113 A defendant who claims his trial counsel was ineffective must show both that
(1) counsel’s performance was deficient and (2) prejudice resulted from that
deficiency. People v. Eubanks, 2021 IL 126271, ¶ 30 (citing Strickland v.
Washington, 466 U.S. 668, 681, 691-92 (1984)). The majority concludes that
defense counsel was deficient for (1) not objecting to the State’s closing argument
on entrapment, (2) acquiescing to the trial court’s decision not to give a
supplemental instruction on the definition of “predisposed,” and (3) failing to
present evidence that defendant lacked a criminal history. The majority does not
address whether the result of the proceeding would have been different absent
counsel’s omissions, as if resolving the Strickland performance issue in defendant’s
favor is dispositive. People v. Manning, 241 Ill. 2d 319, 327 (2011). Regardless of
whether counsel was deficient, defendant was not prejudiced by counsel’s
presentation of the entrapment defense. People v. Cherry, 2016 IL 118728, ¶ 24 (a
defendant’s failure to establish either deficient performance or prejudice precludes
a finding of ineffective assistance of counsel).
¶ 114 The entrapment defense consists of two related elements: (1) government
incitement or inducement of an offense and (2) the defendant’s lack of
predisposition to commit the offense. Mathews v. United States, 485 U.S. 58, 63
(1988). The majority concludes that “once defendant sufficiently raises an
entrapment defense, the entrapment statute requires the State to prove (1) defendant
was predisposed and (2) the government agents merely afforded him the
opportunity or facility for committing the offenses.” Supra ¶ 73 (citing 720 ILCS
5/7-12 (West 2014)). The majority misreads the entrapment statute and prior
decisions on the issue.
¶ 115 According to the majority, the State must prove predisposition in every
entrapment case and cannot rebut the defense by disproving government
inducement alone. This means that slight evidence of government inducement does
not just entitle a defendant to the entrapment instruction, it removes the inducement
issue from the jury’s consideration entirely. The majority’s interpretation renders
the first half of the instruction superfluous.
¶ 116 It is well settled that the pattern instruction should be given when a defendant
presents slight evidence of entrapment, which is defined as government inducement
and a lack of predisposition to commit the offense. People v. Placek, 184 Ill. 2d
- 33 -
370, 380-81 (1998) (“[T]o establish the entrapment defense, the evidence must
show (1) that the State improperly induced the defendant to commit the crime and
(2) that the defendant lacked the predisposition to commit the crime.”). Even if the
trial court exercises its discretion in giving the instruction, the entrapment defense
nevertheless fails if the State proves beyond a reasonable doubt that (1) the
government did not incite or induce the offense or (2) the defendant was
predisposed to commit the offense. The pattern instruction on entrapment and the
State’s closing argument accurately articulated the elements of entrapment and the
State’s burden of proof. Moreover, the jury heard overwhelming evidence that the
government did not incite or induce defendant to commit the offense. Under these
circumstances, defendant has not demonstrated prejudice under Strickland, and his
ineffective-assistance claim fails. I respectfully dissent.
¶ 117 A. Closing Argument
¶ 118 The majority concludes trial counsel was ineffective for failing to object to the
State’s closing argument on inducement and predisposition, because the State
“misstated the issues to be decided by the jury.” Supra ¶ 85. The prosecutor told
the jury, “[i]f you find that the police did incite or induce him, then you can look at
the next step,” indicating predisposition. The appellate court found the State had
improperly directed the jury to consider inducement before predisposition. 2020 IL
App (2d) 170900, ¶ 46. The majority does not explain how the State’s two-step
articulation of entrapment was error, except to summarily conclude that the State
could rebut the entrapment defense only by proving defendant was predisposed to
commit the offense and the government merely afforded him the opportunity. Supra
¶ 77.
¶ 119 The prosecutor also told the jury that the State had the burden to prove that
defendant “was willing to do this and the opportunity was there.” The majority
agrees with defendant that the jury was misled on the predisposition element
because the jury was not explicitly instructed on the “reference to the temporal
focus.” Supra ¶ 79.
¶ 120 The question of whether defendant was prejudiced by counsel’s failure to object
turns on whether the State’s closing argument misstated the law on entrapment,
which it did not. The Illinois entrapment statute provides
- 34 -
“A person is not guilty of an offense if his or her conduct is incited or
induced by a public officer or employee, or agent of either, for the purpose of
obtaining evidence for the prosecution of that person. However, this Section is
inapplicable if the person was pre-disposed to commit the offense and the public
officer or employee, or agent of either, merely affords to that person the
opportunity or facility for committing an offense.” 720 ILCS 5/7-12 (West
2014).
¶ 121 Section 7-12 matches the pattern instruction on entrapment, which also sets
forth the inducement and predisposition elements separately in two sentences:
“It is a defense to the charge made against the defendant that he was
entrapped, that is, that for the purpose of obtaining evidence against the
defendant, he was incited or induced by [(a public officer) (a public employee)
(an agent of a public officer) (an agent of a public employee)] to commit an
offense.
However, the defendant was not entrapped if he was predisposed to commit
the offense and [(a public officer) (a public employee) (an agent of a public
officer) (an agent of a public employee)] merely afforded to the defendant the
opportunity or facility for committing an offense.” Illinois Pattern Jury
Instructions, Criminal, No. 24-25.04 (4th ed. 2000) (hereinafter IPI Criminal
4th).
¶ 122 The entrapment statute and the pattern jury instruction have the same plain and
ordinary meaning. A person is entrapped if the government incites or induces the
commission of an offense. But even if the person is incited or induced by the
government, the person is not entrapped (i.e., “this Section is inapplicable”) if he is
predisposed to commit the offense and the government merely affords the
opportunity for criminality. Stated another way, a person is not entrapped under
section 7-12 if (1) the government does not incite or induce or (2) the predisposition
clause renders section 7-12 inapplicable.
¶ 123 Logic dictates that, because a defendant is entrapped if (1) the government
incites or induces and (2) the defendant lacks predisposition, a defendant is not
entrapped if (1) the government does not incite or induce or (2) the defendant is
predisposed.
- 35 -
¶ 124 The majority’s misapprehension of the law can be traced to what a defendant
must show to claim entrapment and how the burden shifts to the State to disprove
it. The trial court gave the pattern instruction based on a finding that at least slight
evidence supported the affirmative defense. 3 People v. Hari, 218 Ill. 2d 275, 296
(2006) (where there is some evidence to support an affirmative defense instruction,
the trial court’s refusal to instruct the jury constitutes an abuse of discretion even if
the evidence is conflicting, because “[v]ery slight” evidence upon a given theory
will justify giving the instruction). Once a defendant presents some evidence to
support an entrapment defense, the State bears the burden to rebut the defense
beyond a reasonable doubt, in addition to proving all the elements of the crime.
Placek, 184 Ill. 2d at 381.
¶ 125 “[T]o establish the entrapment defense, the evidence must show (1) that the
State improperly induced the defendant to commit the crime and (2) that the
defendant lacked the predisposition to commit the crime.” (Emphases added.) Id.
at 380-81. The State bears the burden of proof at trial, but the State is not the party
establishing the defense. The State is charged with rebutting the defense. A
defendant claiming entrapment must show slight evidence of government
inducement and a lack of predisposition. Conversely, for the State to prevail, the
evidence must show a lack of government inducement or defendant’s
predisposition, and the State has the opportunity to present evidence on both. The
State must disprove entrapment beyond a reasonable doubt, but it need only rebut
one of the two elements to do so.
¶ 126 The majority concludes that, once a defendant sufficiently raises an entrapment
defense, section 7-12 requires the State to prove the defendant was predisposed to
committing the offense and the government agents merely afforded him the
opportunity or facility to do so. Supra ¶ 73. The majority’s interpretation conflicts
with the plain and ordinary meaning of the entrapment statute and the pattern
3
One could argue the trial court would not have abused its discretion had it denied the
entrapment instruction, based on the undisputed evidence that the government simply offered
defendant the opportunity to commit the offense. Jacobson v. United States, 503 U.S. 540, 550
(1992) (“Had the agents in this case simply offered petitioner the opportunity to order child
pornography through the mails, and petitioner–who must be presumed to know the law–had
promptly availed himself of this criminal opportunity, it is unlikely that his entrapment defense
would have warranted a jury instruction.”).
- 36 -
instruction. If the State presents proof beyond a reasonable doubt that the defendant
was not incited or induced by the government to commit the offense, the person is
not entrapped, even if the trial court has exercised its discretion to give the
instruction based on slight evidence.
¶ 127 Moreover, the issues instruction on entrapment states the proposition “[t]hat the
defendant was not entrapped,” not that the defendant was not predisposed. IPI
Criminal 4th No. 24-25.04A. Entrapment is composed of government inducement
and a lack of predisposition. If, as the majority claims, the State cannot rebut
entrapment by disproving government inducement, both the definition instruction
and the issues instruction would refer only to predisposition.
¶ 128 The majority, by deciding that slight evidence of government inducement
removes the issue from the jury’s consideration, has turned the law of affirmative
defenses on its head. For example, an instruction for self-defense is given in a
homicide case where there is some evidence in the record that, if believed by a jury,
would support a claim of self-defense. People v. Everette, 141 Ill. 2d 147, 157
(1990). Like entrapment, self-defense is an affirmative defense, meaning that,
unless the State’s evidence raises the issue involving the alleged defense, the
defendant bears the burden of presenting evidence sufficient to raise the issue. Id.But under the majority’s reasoning, slight evidence of self-defense would remove
the issue from the jury’s consideration entirely and preclude the State from
rebutting the defense beyond a reasonable doubt.
¶ 129 Slight evidence supporting an affirmative defense shifts the burden to the State
to disprove the elements of the defense beyond a reasonable doubt. But the
majority, without explanation, denies the State the opportunity to meet its burden
of disproving one of those elements—government inducement—in entrapment
cases. When a trial court exercises its discretion in giving the entrapment
instruction, the burden of proof shifts to the State to disprove inducement or prove
predisposition beyond a reasonable doubt. United States v. Mayfield, 771 F.3d 417,
440 (7th Cir. 2014) (the State may prevail “by proving either that the defendant was
predisposed to commit the crime or that there was no government inducement”
(emphasis omitted)).
¶ 130 Inducement and lack of predisposition are related elements (Mathews, 485 U.S.
at 63) that are set forth separately in the two sentences of section 7-12. The majority
- 37 -
is correct that the first sentence comprises the inducement element. The majority
also concludes that the second sentence, which comprises the predisposition
element, requires the State to prove beyond a reasonable doubt that the government
merely afforded the opportunity or facility for committing an offense. I wish to
clarify that the second sentence of section 7-12 does not comprise both the
government-inducement and predisposition elements. 720 ILCS 5/7-12 (West
2014). Affording the opportunity to commit an offense is not the same as
inducement:
“[I]nducement means more than mere government solicitation of the crime; the
fact that government agents initiated contact with the defendant, suggested the
crime, or furnished the ordinary opportunity to commit it is insufficient to show
inducement. Instead, inducement means government solicitation of the crime
plus some other government conduct that creates a risk that a person who would
not commit the crime if left to his own devices will do so in response to the
government’s efforts.” Mayfield, 771 F.3d at 434-35.
¶ 131 The State cannot simultaneously prove (1) a lack of government inducement
and (2) government inducement plus defendant’s predisposition. The statute’s
references to predisposition and opportunity simply reflect the relatedness of
entrapment’s two elements. If a defendant is predisposed to commit the offense, he
will require little or no inducement to do so, just an opportunity; conversely, if the
government must work hard to induce a defendant to commit the offense, it is far
less likely that he was predisposed. See United States v. Poehlman, 217 F.3d 692,
698 (9th Cir. 2000). The prosecutor, when arguing to the jury that defendant “was
willing to do this and the opportunity was there,” was paraphrasing the second
sentence of section 7-12. People v. Wheeler, 226 Ill. 2d 92, 123 (2007) (a prosecutor
has wide latitude in making closing arguments).
¶ 132 Moreover, any error that might have resulted from the prosecution’s argument
concerning a two-step analysis of the entrapment elements was cured when both
sides argued—and the trial court instructed the jury—that the State bore the burden
of proving that defendant was “not entrapped.” Even if the jury was mistaken that
it must consider government inducement before defendant’s predisposition,
defendant was not prejudiced. As explained below, the evidence of a lack of
government inducement was overwhelming.
- 38 -
¶ 133 B. Supplemental Instruction
¶ 134 Assuming arguendo that counsel was deficient for failing to tender a definition
of “predisposed” when the jury twice asked for one, defendant has failed to show a
reasonable probability that the result of the proceeding would have been different
if counsel had requested an instruction. See Manning, 241 Ill. 2d at 327. Counsel’s
omission neither undermined the confidence in the outcome nor rendered the result
of the trial unreliable or fundamentally unfair because the jury had been properly
instructed on entrapment. See People v. Evans, 209 Ill. 2d 194, 220 (2004).
¶ 135 The commonly understood meaning of “predisposed” and its legal definition in
the entrapment context are the same. Defendant was not prejudiced when counsel
acquiesced to the trial court’s decision not to define “predisposed,” because the
instructions that were given stated the law correctly.
¶ 136 “Predisposed” means “having a predisposition,” “inclined,” or “susceptible.”
Webster’s Third New International Dictionary 1786 (1993). “Predisposition” is
similarly defined as “[a] person’s inclination to engage in a particular activity.”
Black’s Law Dictionary 1216 (8th ed. 2004).
¶ 137 Consistent with the dictionary definitions, “predisposition” in the entrapment
context refers to the defendant’s inclination to engage in criminal activity. It is well
settled that “predisposition” means the defendant was ready and willing to commit
the crime without persuasion and before his or her initial exposure to government
agents. People v. Bonner, 385 Ill. App. 3d 141, 146 (2008) (quoting People v. Criss,
307 Ill. App. 3d 888, 897 (1999)); see also People v. Ramirez, 2012 IL App (1st)
093504, ¶ 38; People v. Sanchez, 388 Ill. App. 3d 467, 474 (2009).
¶ 138 The commonly understood meaning of “predisposition” already incorporates
the relevant point at which the defendant’s disposition should be determined.
“Quite obviously, by the time a defendant actually commits the crime, he will have
become disposed to do so.” Poehlman, 217 F.3d at 703. However, “the relevant
time frame for assessing a defendant’s disposition comes before he has any contact
with government agents, which is doubtless why it’s called predisposition.”
- 39 -
(Emphasis in original.) Id. (citing Jacobson v. United States, 503 U.S. 540, 549
(1992)). “Predisposition” contains the prefix “pre” because the relevant timeframe
for assessing a defendant’s disposition to commit the offense is before he has any
contact with government agents.
¶ 139 The jury received the pattern instruction, which itself gives temporal context to
“predisposed” by referring to contact with government agents, who merely afford
the opportunity for committing the offense. IPI Criminal 4th No. 24-25.04 (“the
defendant was not entrapped if he was predisposed to commit the offense and [a
government agent] merely afforded to the defendant the opportunity or facility for
committing an offense”).
¶ 140 Illinois courts have long held that, “[w]hen words in a jury instruction have a
commonly understood meaning, the court need not define them with additional
instructions. [Citation.] This is especially true where the pattern jury instructions
do not provide that an additional definition is necessary.” Sanchez, 388 Ill. App. 3d
at 477-78; People v. Trout, 2021 IL App (1st) 191733-U, ¶ 20; Schnitker v.
Springfield Urban League, Inc., 2016 IL App (4th) 150991, ¶ 40; People v. Clark,
2015 IL App (3d) 140036, ¶ 34; People v. Manning, 334 Ill. App. 3d 882, 890
(2002); People v. Washington, 184 Ill. App. 3d 703, 708-09 (1989); People v.
Hicks, 162 Ill. App. 3d 707, 713 (1987) (a term employed in a general, nontechnical
context need not be defined as long as nothing in the instruction obscures its
meaning); People v. Johnson, 98 Ill. App. 3d 228, 234 (1981) (an instruction
specifically defining “theft” is unnecessary because the word in common usage
generally means the unlawful taking of property). The pattern instruction on
entrapment given in this case (IPI Criminal 4th No. 24-25.04) neither obscured the
meaning of its terms nor required additional definitions. Under the unique
circumstances presented here, defendant has not shown a reasonable probability
that the result of the proceeding would have been different if counsel had tendered
a supplemental instruction in response to the jury’s questions. Manning, 241 Ill. 2d
at 327.
¶ 141 The majority summarily concludes that “counsel’s error [in not tendering a
definition] resulted in the jury being improperly instructed on how to apply the
legal terms to the facts and prevented them from analyzing the evidence to
determine defendant’s guilt.” (Emphasis added.) Supra ¶ 70. The majority does not
- 40 -
bother to discern the common meaning of “predisposed” or attempt to contrast it
with the legal definition. The majority characterizes the trial court’s response as
“prejudicial error,” without assessing the probability that the result of the
proceeding would have been different if counsel had tendered a supplemental
instruction. The majority cites no authority for the proposition that Strickland
prejudice may be presumed when counsel fails to tender a definition requested by
the jury. But the majority opinion could be interpreted to mean that prejudice results
any time the trial court declines the jury’s request to define a word in an instruction,
even if the commonly understood meaning and the legal definition are the same.
Imposing such a rule, especially in a case like this where the pattern instruction
does not call for an additional definition, risks misleading the jury depending on
how a commonly understood word is defined.
¶ 142 C. Government Inducement
¶ 143 Finally, the outcome of the proceeding would not have been different absent all
of counsel’s omissions because the evidence disproving government inducement
was overwhelming. “Inducement” means government solicitation of the crime plus
some other government conduct that creates a risk that a person who would not
commit the crime if left to his own devices will do so in response to the
government’s efforts. Mayfield, 771 F.3d at 434-35. The additional government
conduct can include repeated attempts at persuasion; fraudulent representations;
threats; coercive tactics; harassment; promises of reward beyond that inherent in
the customary execution of the crime; or pleas based on need, sympathy, or
friendship. Id. at 435; see also Bonner, 385 Ill. App. 3d at 145 (inducement to
commit drug offense shown where government informant not only furnished the
opportunity but solicited “constantly” and overcame the defendant’s refusals by
offering sexual favors).
¶ 144 The State concedes the government agents solicited defendant to pay for sex
with underage girls. The majority describes the government’s tactics as a “bait-and-
switch” involving an advertisement with “a picture of an 18-year-old woman.”
Supra ¶ 92. The poster’s age was listed as “18,” but the photograph depicts a
postpubescent female from the neck down who easily could have been under 18.
Regardless of her age or whether the government engaged in a “bait and switch,”
- 41 -
resorting to artifice to post the advertisement was not improper because these types
of crimes are committed in secret. See People v. Outten, 13 Ill. 2d 21, 24 (1958).
¶ 145 The brief timeline, the content, and the tone of defendant’s contact with the
government agents disproves the inducement element. Defendant answered the
advertisement at 10:02 p.m. Less than 10 minutes later, at 10:11 p.m., Agent Taub
informed defendant that the girls available for sex were 14 and 15 years old.
Defendant responded that he was not interested in minors because they were “too
risky,” and he inquired whether Agent Taub was “affiliated with the law or
something.” Agent Taub reassured defendant, and at 10:19 p.m., defendant
volunteered that “naturally, [the girls] were old enough” to have sex, even if “the
law says they are not.”
¶ 146 Within 11 minutes of learning the girls’ ages, defendant asked for more
photographs and for the location of the hotel where they would be made available
for sex. Within 17 minutes of learning their ages, defendant sent a text message
agreeing to pay $200 for sex with girls he thought were 14 and 15 years old.
¶ 147 At the hotel, Agent Siffermann posed as the girls’ mother. Defendant made
several comments expressing nervousness. After each comment, Agent Siffermann
gave a one-word response, such as “Ok,” “Sure,” or “Yeah.” Agent Siffermann did
not cajole defendant or try to persuade him to have sex with minors. She merely
explained that she preferred to “meet the guys first just to make sure” they were not
“creeps.” Defendant replied that, even though he “just found out” about the girls’
ages, he “had to come by” because he was “curious.”
¶ 148 Defendant told Agent Siffermann he was “nervous” the transaction was a “set
up or something.” She replied, “you can see me, I’m here, so everything’s fine,”
indicating the opportunity to commit the offense. Defendant reiterated that, “when
you’re telling me their ages, I’m like this sounds like they’re trying to lure
somebody in.” Agent Siffermann replied she preferred to “meet everyone first
ahead of time just to make sure that they’re safe.” Moments before retrieving $200,
defendant stated “I mean like naturally I think that you know, once a girl has her
period she’s ready for that kind of thing but *** legally obviously *** it’s not the
right thing.”
- 42 -
¶ 149 The text-message exchange and the hotel-room conversation prove the
government agents merely afforded defendant the opportunity to commit the
offense; the agents did not engage in additional conduct amounting to inducement.
When defendant was offered the opportunity to have sex with an underage girl, he
did not cut off communication or express disgust. Instead, he sought and received
assurances that the agents were not law enforcement, and within minutes, he agreed
to pay for sex with two girls he believed to be 14 and 15 years old. Defendant
repeatedly expressed curiosity and twice cited the girls’ physical maturity to
rationalize his decision. To the extent defendant expressed nervousness, it was only
over the risk of getting caught. By contrast, the agents did not beg, threaten, coerce,
harass, promise an extra reward, or make pleas based on need, sympathy, or
friendship. When afforded the opportunity to pay for sex with underage girls,
defendant talked himself into it within minutes.
¶ 150 Under these undisputed facts, there was no risk that a person who would
otherwise not commit the crime would do so in response to the government’s
efforts. In light of the overwhelming evidence of lack of inducement, defendant has
not shown a reasonable probability that the outcome of the trial would have been
different if counsel had tendered a definition for “predisposed,” objected to the
State’s argument on entrapment, or informed the jury of defendant’s lack of a
criminal history.
¶ 151 D. Conclusion
¶ 152 A defendant is entitled to the pattern entrapment instruction if he presents slight
evidence of government inducement and his own lack of predisposition. When the
trial court allowed defendant to present the entrapment defense, the burden shifted
to the State to disprove inducement, or prove predisposition, beyond a reasonable
doubt.
¶ 153 Counsel’s omissions at trial did not prejudice defendant because neither the
instruction on entrapment nor the prosecution’s closing argument misstated the law
and the State disproved the government-inducement element by overwhelming
evidence. For the preceding reasons, I would reverse the judgment of the appellate
court and address the issues raised by defendant in his cross-appeal.
- 43 -
¶ 154 JUSTICES THEIS and CARTER join in this dissent.
- 44 -
APPENDIX I
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- 46 -
Peoplev. Shane Lewis, l5CF44
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S.A. SlfFERMANN: Yeah. Well !hat's
LEWIS: And I j us1 like.
S.A. SIFFERM/\NN: ...that's why, I. like to, I like lo meet tl1e guys first just to make sure that
they' re not. ..
LEWIS: I don' t even know ...
S./\ . SlFFERMANN: ... erozy
LEW[$: ... like reall y I just found out, I just like I'm curious, 1ha1's why J had to ...
S.A. Sll'fERMANN: Yeah.
LEWIS: ...come by. I think I am morc,just nervous, like set up or something, you know what I
mean?
S.A. SIFFERMANN: Yeah, no, I mean ...
LEWIS: Like ...
S.A. SlFFERYIANN: I think it w