2020 IL App (2d) 170900 No. 2-17-0900 Opinion filed November 12, 2020 ______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT ______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Kane County. ) Plaintiff-Appellee, ) v. ) No. 15-CF-44 ) SHANE LEWIS, ) Honorable ) Linda S. Abrahamson, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________
JUSTICE BRENNAN delivered the judgment of the court, with opinion. Justices Jorgensen and Bridges concurred in the judgment and opinion.
OPINION
¶1 Defendant, Shane Lewis, was charged by indictment 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 a jury trial, defendant asserted the defense of entrapment. The jury
found defendant guilty of the charged offenses. On appeal, he argues that (1) in presenting the
affirmative defense of entrapment, defense counsel rendered ineffective assistance of counsel for
failing to (a) provide a definition for “predisposed” when requested by the jury, instead
acquiescing in the court’s decision not to answer the question, (b) present to the jury that defendant
had no criminal record, and (c) object to the State’s mischaracterization of the entrapment defense
during closing argument; (2) the State failed to prove beyond a reasonable doubt that he was not 2020 IL App (2d) 170900
entrapped into committing the offenses; (3) the State failed to prove that defendant was guilty of
involuntary sexual servitude of a minor where the statute applies to sex traffickers but not to
patrons like him, there was no minor involved, and, alternatively, no minor was threatened or
coerced; and (4) defendant’s conviction and sentence for involuntary sexual servitude of a minor
must be vacated because the statute violated the proportionate penalties clause of the Illinois
Constitution. Based on defense counsel’s ineffective assistance, we reverse defendant’s
convictions and remand for a new trial. Because this issue is dispositive, we do not address the
remaining issues on appeal.
¶2 I. BACKGROUND
¶3 Before trial, defendant, claiming that no actual minor was involved in the alleged offense,
filed a motion to dismiss the charge of involuntary sexual servitude of a minor. Defendant also
argued that the statute was unconstitutional because the Class X felony offense of involuntary
sexual servitude of a minor contained identical elements to the Class A misdemeanor offense of
attempted patronizing a minor engaged in prostitution. Noting that the State may no longer
criminally prosecute juvenile prostitutes, the trial court concluded that attempted patronizing a
minor engaged in prostitution could not be a comparable offense. The court therefore denied
defendant’s motion. Defendant filed a motion to reconsider. The court expressed its opinion that
patronizing a minor engaged in prostitution should no longer be “on the books.” The court also
found that the same criminal behavior can result in different penalties without offending the
proportionate penalties clause. The court denied the motion to reconsider except as to the issue of
the absence of actual minors. The court stated that it would decide that issue when the parties
discussed the jury instructions. The court ultimately denied that aspect of the motion as well.
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¶4 The trial commenced on July 31, 2017, during which the following relevant evidence was
presented. On January 8, 2015, defendant responded by text to the phone number listed in an
advertisement for a female prostitute on the website “Backpage.com.” The ad was titled “young
warm and ready :)—18.” It highlighted a photograph of a brunette female wearing cut-off jean
shorts and a midriff-baring top. The female’s face could not be seen. The advertisement read as
follows:
“Its ssooooooo cold outside, come warm up with a hot little coed. 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: 0:):) ask about my two for one special text me at [xxx-xxx-xxxx].
100 donation for hh
150 donation full hour
Poster’s age: 18”
Defendant was not aware when responding to the ad that he was communicating with Agent
Spencer Taub of the United States Department of Homeland Security (DHS). The following is the
text exchange that occurred between the two:
“[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
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[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?
[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.
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[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
[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
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[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
¶5 Defendant entered the hotel room and met Melissa Siffermann, a special agent with DHS,
posing as the mother offering her two daughters for sex. Defendant provided $200 in cash, which
he left on the nightstand next to the bed. After they conversed for several minutes, defendant was
arrested.
¶6 The court admitted into evidence a video recording of the conversation between Siffermann
and defendant. As an aid, the State provided a transcript of the recording to the jury as they watched
the video. During that conversation, defendant admitted that he was nervous about the age of the
girls. He mentioned that he just “wanna get shizzed,” to which Siffermann responded: “I just want
to make sure that [there was] no anal.” Defendant told her that he really did not have much of a
plan, that he was “just kind of curious and nervous at the same time but um, *** we can show them
the way.” Defendant continued that “[t]his makes me nervous just saying their ages, like why don’t
you just tell me they are eighteen and nineteen please.” “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.”
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¶7 Geoffrey Howard, a special agent with DHS, testified that his department entered into a
partnership with the Aurora Police Department as part of an ongoing sting operation called “Child
Shield” to target individuals who were seeking to have sex with minors. On January 8, 2015, an
ad was posted on an escort service webpage called “Backpage.com.” The ad provided a phone
number to which interested individuals could sent a text. In order to keep the high volume of
messages straight, the officers used a computer system called Callyo, which allowed them to
respond to incoming texts via computer rather than phone. The program created a record of
incoming and outgoing messages.
¶8 Howard recalled that there had been a snowstorm on January 8, 2015, and it was very cold,
with high winds and blowing snow. On that night, Howard arranged a set up at a hotel off Orchard
Road and I-88 in Aurora. He chose that hotel primarily because of its proximity to the interstate
and to the Chicago area in general.
¶9 Howard explained how he set up the sting operation at the hotel. The agents conducted the
operation out of two adjoining rooms. One room, called the “target room,” was used as a meeting
room for the targeted individuals and the undercover officer who played the “mother.” The other
room was used as the control room where several officers would correspond by text messages with
individuals responding to the online ad. Two surveillance cameras were set up. One camera
recorded the hallway outside of the meeting room. The other camera recorded the inside of the
meeting room. Several agents monitored the surveillance equipment.
¶ 10 Investigator Erik Swastek of the Aurora Police Department testified that he posted the ad
in the adult section of Backpage.com on January 8, 2015. He stated that, if an ad included someone
younger than 18, the ad would not post. However, based on what he learned from a prostitute,
people trying to find juveniles on Backpage.com looked for people posing as 18- or 19-year-olds.
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¶ 11 Swastek stated that the phone number used was a “spoof” number. After someone
responded to the ad, Swastek assigned the number to an officer who would then be responsible for
communicating with that person. At approximately 10:02 p.m., on January 8, 2015, a text message
was received in response to the ad, which Swastek assigned to Taub. On that particular day,
Swastek remembered that “it was a snowy, cold, miserable day.”
¶ 12 Taub testified that he was assigned to respond to the texts coming in from defendant that
night. He portrayed the role of a mother offering her daughters for sexual services. All the texters
were given the same instructions. Taub testified to the contents of the text conversation with
defendant. Taub explained that the word “infall” was a typo for the word “incall,” which meant
you had to come to the hotel for sexual services. The last text occurred around 11:16. p.m. when
defendant arrived at the hotel parking lot and Taub texted him the room number.
¶ 13 Siffermann testified that she portrayed the mother who offered her two teenage daughters
for sex on the night in question. She was aware that someone responded to the ad and would be
arriving at the meeting room. At approximately 11:19 p.m., defendant entered, they began talking,
and he gave her $200. The conversation lasted a few minutes, ending with defendant expecting
Siffermann’s daughters to arrive in the room and Siffermann excusing herself to the bathroom.
After she entered the bathroom, the arrest team entered the room and arrested defendant.
¶ 14 Siffermann testified that during the conversation defendant used the term “shizzed.” In the
context of her experience with sex trafficking and prostitution operations, she described it to mean
a person who climaxes so intensely as to defecate on oneself.
¶ 15 Following his arrest, police found a cell phone, a box of condoms, and $400 in defendant’s
pocket. Nothing incriminating was found on defendant’s cell phone or iPad beyond the text
messages admitted at trial.
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¶ 16 Defendant signed a waiver of his Miranda rights. See Miranda v. Arizona, 384 U.S. 436
(1966). Aurora police officer Greg Christoffel, who interviewed defendant, recalled that defendant
told him that he in was in town on business when he decided to go on an adult website because he
was lonely. He received a text message from someone he believed to be the mother of a 14- and a
15-year-old, who stated that they were available for sex. Defendant thought the ages were a typo
but responded out of “curiosity,” even though he had no intention of having sex with a 14- or 15-
year-old.
¶ 17 Defendant called several character witnesses on his behalf. Kevin Carlson testified that he
had known defendant for more than 10 years and that they had worked together for 8 years.
Defendant was his “best friend” and a “great mentor.” They went to bars together, but they never
picked up women. Carlson lived with defendant and his wife for two years. Carlson stated that
defendant “never, ever talked about underage girls before.”
¶ 18 Alan Kaper testified that he had worked with defendant and that they had been friends for
13 years. They attended charity events, football games, and had gone on vacation together several
times. Occasionally, they discussed their sex lives, but they did not pick up women together. Kaper
stated that defendant “absolutely has never shown any want to be with an underage person.”
¶ 19 Defendant’s sister, Krista Jackson, testified that she had a close relationship with her
brother. She testified that he would “never” have sex with an underage girl and that she had never
seen him display any inclination, predisposition, or interest in underage girls.
¶ 20 Defendant’s 23-year-old niece, Tanisha Lewis, testified that she was very close with her
uncle. She stated that she lived with him for a while and that he had no predisposition or interest
in having sex with underage girls.
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¶ 21 Defendant testified that he lived in Pennsylvania and had been married for 14 years. On
January 8, 2015, he was 35 years old and was in town on business and staying in a hotel in Downers
Grove. At that time, he had been separated from his wife for nearly six months. Defendant finished
work at about 8:45 p.m. As he sat in the hotel parking lot in Downers Grove, he started searching
through Backpage.com because he was depressed, lonely, and looking for companionship. He had
been on the site before, after a business traveler he had met a few weeks earlier told him about it.
Defendant stated that he was not looking for sex, but shortly after he started texting with Taub, it
became apparent to him that “there was a sexual agenda there.” Defendant stated that, when one
clicks on the ad, there is an indication that you must agree that this is an adult site only. When he
responded to the ad that said, “my girls just want to get warm,” defendant had no idea that there
were minors involved. At some point when the texter mentioned her daughters were minors,
defendant said, “Wtf, I’m not interested in that. Are you crazy?”
¶ 22 Defendant acknowledged texting that he knew that girls aged 14 and 15 were old enough
to have sex “but the law says they are not.” Defendant meant that girls can get pregnant at those
ages and thus are “capable.” Defendant did not believe that it is “okay to have sex with girls that
age.” Defendant stated that his memory was somewhat “foggy” about that night, and he hardly
could believe that he texted those words. Once he arrived at the hotel, he thought it was okay
because the mother was there. Defendant explained that, because the “mom” kept talking and
trying to get him to agree to the transaction, it made him feel comfortable.
¶ 23 During cross-examination, defendant testified that it was not his goal that night to have sex
with a 14- and a 15-year-old. Defendant explained that the business traveler who recommended
the site told him that the adult services had a variety of amenities, including people who would go
out with you for dinner and “cuddle” with you. Defendant testified that he asked how much for all
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three, the mother and the two teens, because he was politely trying to divert the conversation back
to the texter. Defendant believed that, from the initial contact, there was a sexual agenda, so he
stopped to buy condoms at a gas station on the way. Defendant denied using the word shizzed, and
he claimed that it was not clear from the video that he used the word.
¶ 24 The trial court ruled that defendant could present an entrapment defense and provided
defendant’s Illinois Pattern Jury Instruction, Criminal, No. 24-25.04 (4th ed. 2000) (hereinafter IPI
Criminal 4th) concerning entrapment to the jury. The instruction provided that a defendant was
entrapped if he was “incited or induced by a public offender to commit [the] offense,” unless he
was “predisposed to commit the offense[.]” During its deliberations, the jury sent a written
question to the court that read, “Legal definition of incited and induced and predisposed.” The
prosecutor informed the court that he recalled reading a case holding that defense counsel was not
ineffective for agreeing not to provide definitions for those same terms. The prosecutor was
concerned that there were no legal definitions, to which the court responded that there are and that
“[y]ou can look it up in Black’s. That’s the legal dictionary. So there is one in there, but I don’t
want to go down that path. There’s no IPI on it.” Defense counsel responded that he was fine with
that and agreed with the court responding to the jury: “You have all of your instructions, please
continue to deliberate.” Just over thirty minutes later, the jury again asked, “Predisposition—what
does this mean—please give definition[.]” The following colloquy then took place:
“MS. GLEASON [(ASSISTANT STATE’S ATTORNEY)]: I thought—didn’t
they ask that the last time?
THE COURT: I think that as induce, incite or—was that the third thing?
MS. GLEASON: That’s what I wrote down, but I could be wrong.
MR. ZUELKE [(DEFENSE COUNSEL)]: I got that you said predisposed.
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THE COURT: Whatever it is. And if you guys were writing down what I said last
time, ‘you have all your instructions. Please continue to deliberate.’ Is that what I said?
MR. ZUELKE: Yes.
MS. GLEASON: I had, ‘You have all of the instructions. Please continue to
deliberate.’
THE COURT: All right. ‘You have all of the instructions. Please continue to
And now that they have had a chance to digest the answers to the other, so just
maybe stand by for a minute or two just in case because that buzzer went off really fast.”
¶ 25 The discussion apparently was interrupted by the jury announcing that it had reached a
verdict. The jury found defendant guilty of all three offenses. Defendant filed a motion for a new
trial, claiming, inter alia, that he could not have knowingly committed the offense of involuntary
servitude where there was no actual minor involved and that the statute defining the offense
violated the proportionate penalties clause of the Illinois Constitution. The court denied the motion.
¶ 26 Following a sentencing hearing, the trial 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. Defendant timely appeals.
¶ 27 II. ANALYSIS
¶ 28 Defendant contends that his trial counsel rendered ineffective assistance of counsel by
(1) failing to provide a definition for “predisposed” when requested by the jury, instead
acquiescing in the court’s decision not to answer the question, (2) failing to present to the jury that
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he had no prior criminal history as it related to the question of predisposition, and (3) failing to
object to several aspects of the State’s closing argument regarding entrapment.
¶ 29 To establish ineffective assistance of counsel, a defendant must show both (1) deficient
performance by counsel that fell below an objective standard of reasonableness and (2) prejudice,
meaning a reasonable probability that absent counsel’s error, the result would have been different.
Strickland v. Washington, 466 U.S. 668, 687 (1984). Under the first prong of the Strickland test,
defendant must overcome a “strong presumption that counsel’s conduct falls within the wide range
of reasonable professional assistance; that is, the defendant must overcome the presumption that,
under the circumstances, the challenged action might be considered sound trial strategy.” (Internal
quotation marks omitted.) Id. at 689. Under Strickland’s prejudice prong, a “reasonable
probability” that the result would be different is a probability that is sufficient to undermine
confidence in the outcome of the trial. People v. Houston, 229 Ill. 2d 1, 4 (2008). The failure to
satisfy either of the Strickland prongs dooms the claim. People v. Givens, 237 Ill. 2d 311, 331
(2010).
¶ 30 Defendant argues that the individual and cumulative effect of his counsel’s deficient
performance prejudiced the jury and deprived him of a fair trial. We first address the three
ineffectiveness claims individually to determine if there was deficient performance. We then
consider whether, cumulatively, any such deficiencies prejudiced defendant such that confidence
in the trial’s outcome has been undermined.
¶ 31 A. Deficient Performance
¶ 32 1. Failure to Submit Definition of “[P]redisposed”
¶ 33 Initially, defendant argues that trial counsel was ineffective where he failed to offer a
definition of “predisposed,” instead acquiescing in the court’s decision to instruct the jurors, “You
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have all your instructions, please continue to deliberate.” Defendant asserts that this was deficient
performance because the common understanding of the term “predisposed” is at odds with the
more narrowly focused understanding of the term for purposes of the entrapment defense. Because
defendant, in claiming entrapment, admitted committing the elements of the charged offenses, the
issue of his predisposition was the lynchpin of his defense, and the jury should not have been
allowed to labor under a misunderstanding of that concept.
¶ 34 The State counters that it was not deficient performance to acquiesce in the decision not to
answer the jury’s questions. The State cites People v. Sanchez, 388 Ill. App. 3d 467 (2009), where
the First District held that defense counsel was not ineffective for acquiescing in the trial court’s
decision not to provide a requested definition for “predisposed” in an entrapment case. The
Sanchez court noted, “[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.” Id. at 477-
78. For the reasons that follow, we decline to follow our sister court’s analysis in Sanchez.
¶ 35 In this case, the jury was instructed with the IPI Criminal 4th instruction regarding the
affirmative defense of entrapment, which states:
“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.” IPI Criminal 4th No. 24-25.04.
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During deliberations, the jury asked the trial court for the legal definition of “predisposed,” which,
with the acquiescence of defense counsel, was not provided. The jury subsequently asked for the
definition of “predisposition,” but as the judge and the parties discussed the response, the jury
apparently reached its verdict and the question was not further addressed.
¶ 36 “[T]he general rule is that the trial court has a duty to provide instruction to the jury where
it has posed an explicit question or requested clarification on a point of law arising from facts about
which there is doubt or confusion.” People v. Childs, 159 Ill. 2d 217, 228-29 (1994). “This is true
even though the jury was properly instructed originally.” Id. at 229.
¶ 37 Here, the concern raised by defendant is that the commonly understood meaning of
“predisposed” is broader than how the concept is understood in the governing case law for
purposes of the entrapment defense. “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.’ ” (Emphasis added.)
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; Sanchez, 388 Ill. App.
3d at 474. Webster’s Third New International Dictionary defines “predisposed” as “having a
predisposition.” Webster’s Third New International Dictionary, 1786 (1993). Black’s Law
Dictionary defines “predisposition” as “[a] person’s inclination to engage in a particular activity.”
Black’s Law Dictionary 1216 (8th ed. 2004).
¶ 38 Accepting that the common understanding of “predisposed” mirrors the above dictionary
definitions rather than the narrower understanding in our governing case law, the defendant’s
problem is readily apparent. The common understanding does not focus the jury on the correct
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timeframe for its predisposition analysis, i.e., before defendant’s initial exposure to government
agents. See Bonner, 385 Ill. App. 3d at 146-47. Accordingly, the failure to properly define
predisposition potentially allowed the jury to find that defendant was predisposed to commit the
offenses by focusing on the wrong timeframe, e.g., the time he entered the hotel room—a far easier
point from which to find predisposition than from the time before defendant’s exposure to the
government agents. 1
¶ 39 To ensure that the jury properly understood the concept of predisposition despite having
twice expressed confusion about it, the trial court should have answered the jury’s question with
reference to the readily available explanation of predisposition set forth in Bonner. Bonner, 385
Ill. App. 3d at 146. Of course, we must acknowledge that the court’s failure to provide the Bonner
definition cannot be said to be error in the traditional sense, insofar as defense counsel acquiesced
in the court’s decision not to answer the question and defendant does not assert plain error on
appeal. This acquiescence, however, and the failure to provide the Bonner definition to the court,
1 Though neither of the parties cite the legislative history of the entrapment statute, we
note, parenthetically, a discussion on the House floor between the sponsor of the 1996 amendment
to the statute and another member wherein they agreed that the dictionary definition of
predisposition would apply in lieu of defining the term in the statute. See 89th Ill. Gen. Assem.,
House Proceedings, March 22, 1995, at 108 (statements of Representatives Durkin and Hoffman);
Pub. Act 89-332, § 5 (eff. Jan. 1, 1996) (amending 720 ILCS 5/7-12). We do not, however, find
this discussion in any way determinative of our current analysis. The issue is not the dictionary
definition itself but rather where to focus the dictionary definition for purposes of the entrapment
analysis, i.e., prior to exposure to government agents.
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was deficient performance on the part of trial counsel, given that lack of predisposition was the
lynchpin of the defense. Given the difference between the common understanding of
“predisposition” and its narrower meaning in the entrapment context as set forth above—a
distinction that the Sanchez court did not address—we decline to follow the holding in Sanchez
that it was not ineffective assistance of counsel to acquiesce in the decision to decline the jury’s
request for the definition of predisposition. Sanchez, 388 Ill. App. 3d at 477-78.
¶ 40 Simply put, there is no strategic basis for allowing a confused jury to potentially stray from
the proper timeframe—the time before defendant’s exposure to government agents—in deciding
whether defendant was predisposed to commit the offenses he otherwise admitted committing.
Allowing the jury that leeway was deficient performance as it relates to the entrapment defense.
¶ 41 2. Failure to Present Evidence of Defendant’s Lack of Prior Criminal Record
¶ 42 Defendant further contends that his trial counsel rendered deficient performance by failing
to present to the jury the material fact that he had no criminal record, which was relevant to whether
he was predisposed to commit the charged offenses before exposure to law enforcement.
¶ 43 A criminal defendant is constitutionally guaranteed a meaningful opportunity to present a
complete defense. U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I, § 8; Holmes v. South
Carolina, 547 U.S. 319, 324 (2006). Lack of a criminal record is relevant to an entrapment defense
because it tends to show that the defendant was less likely to be predisposed to commit the charged
offense. Ramirez, 2012 IL App (1st) 093504, ¶ 43; see also Criss, 307 Ill. App. 3d at 899 (trial
court erred in excluding evidence of defendant’s lack of criminal record in entrapment case).
¶ 44 Defendant had no criminal background at all, but his counsel did not present that fact to
the jury. A defendant raising the defense of entrapment must admit to the factfinder that he has
committed the charged offense, while urging that he lacked the predisposition to commit the
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offense. See Ramirez, 2012 IL App (1st) 093504, ¶ 28. Informing the jury that defendant had no
criminal history, including no previous criminal convictions involving sexual conduct with minors,
would have bolstered defendant’s argument to the jury that he was not predisposed to commit the
offenses before exposure to government agents. Defendant’s lack of a criminal record was strong
evidence demonstrating this lack of predisposition, and counsel’s failure to present this evidence
is an obvious failure to function as the counsel guaranteed by the sixth amendment.
¶ 45 3. Failure to Object to the State’s Entrapment Argument
¶ 46 Defendant finally contends that counsel performed deficiently by failing to object to the
State’s closing argument as it related to both inducement and predisposition. During closing, 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,” which was predisposition. Defendant argues that this two-step articulation
improperly suggested to the jury that it had to first find inducement before considering the
predisposition issue. This articulation ignores that it became the State’s burden to disprove
inducement, or prove predisposition, beyond a reasonable doubt once the trial court decided there
was sufficient evidence to allow the affirmative defense of entrapment. Bonner, 385 Ill. App. 3d
at 145. The State counters that it has wide latitude in closing argument and that its argument
appropriately mirrored the IPI Criminal 4th entrapment instruction.
¶ 47 Defendant correctly construes the State’s argument as shifting the burden. Once the trial
court finds sufficient evidence to warrant allowing defendant to submit the affirmative defense of
entrapment to the jury, it is the State’s burden to defeat the defense by proving beyond a reasonable
doubt either (1) that defendant was not induced or (2) that he was predisposed to commit the
offense before his exposure to government agents. To suggest that the jury had to first determine
that defendant was induced misallocates the burden. The jury did not have to “find inducement”
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for defendant’s entrapment instruction to prevail; rather, the State had to disprove that defendant
was entrapped beyond a reasonable doubt. Ramirez, 2012 Il App (1st) 093504, ¶ 28.
¶ 48 Defendant further argues that his counsel was deficient for failing to object to the
prosecutor’s predisposition argument that, “what we have to prove is that [defendant] was willing
to do this and the opportunity was there.” We agree with defendant 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. Bonner, 385 Ill. App. 3d at 145;
Ramirez, 2012 IL App (1st) 093504, ¶ 38; Sanchez, 388 Ill. App. 3d at 474. For the reasons we
articulated (supra ¶ 37-39) regarding the definition of predisposition, trial counsel should have
objected to any argument that failed to pinpoint the proper timeframe for the predisposition
analysis.
¶ 49 We find that counsel unreasonably failed to object to the mischaracterization of the burden
of proof and to an improperly broad articulation of predisposition.
¶ 50 B. Prejudice
¶ 51 Having identified the above deficiencies in trial counsel’s performance, all of which relate
in some fashion to the question of defendant’s predisposition to commit the offenses, it remains to
determine whether defendant was prejudiced such that there was ineffective assistance of counsel.
See Houston, 229 Ill. 2d at 4. Defendant urges that the predisposition question was the lynchpin
of his defense and so the jury’s obvious confusion as to the meaning of predisposition undermines
confidence in the outcome of the trial.
¶ 52 The State counters that there was no prejudice, because the evidence demonstrates beyond
a reasonable doubt that defendant was not induced and, in the alternative, that defendant was
predisposed to commit the admitted-to offenses.
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¶ 53 A defendant raising entrapment must present at least slight evidence that (1) the State
induced or incited him to commit the crime and (2) he was not otherwise predisposed to do so.
People v. Placek, 184 Ill. 2d 370, 380-81 (1998). Once the defendant presents slight evidence of
entrapment, and the trial court allows the affirmative defense, the burden shifts to the State to rebut
the entrapment defense beyond a reasonable doubt. Bonner, 384 Ill. App. 3d at 145. Here,
defendant presented enough evidence to warrant allowing him to pursue the affirmative defense
of entrapment. Regarding inducement, Taub was the first person to bring up the possibility of sex
with minors and persisted in pursuing that option with defendant even after he expressed that he
was not interested. Regarding predisposition, defendant and his witnesses testified to defendant’s
lack of sexual interest in minors.
¶ 54 Arguing that defendant was not induced, the State invites us to engage in a bifurcated
prejudice analysis that first considers the question of inducement. It argues that because the
evidence showed that defendant was not induced beyond a reasonable doubt, it proved that
defendant was not entrapped, rendering any deficient performance on the predisposition issue
nonprejudicial.
¶ 55 While the question of entrapment is generally one for the jury to decide (Placek, 184 Ill.
2d at 381), we cannot say with any certainty that the State proved beyond a reasonable doubt that
defendant was not induced. On the one hand, Taub was the first to mention sex with minors to
defendant, and Taub continued to suggest the conduct after defendant initially expressed
disinterest. On the other hand, defendant quickly overcame his expressed disinterest in sex with
minors and proceeded to plan a sexual encounter with the minors whom Taub described, ultimately
traveling in a snowstorm to accomplish this purpose. Further, any meaningful attempt to parse
through the evidence to decide the inducement prong was irreparably thwarted by the State’s
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argument to the jury that it first had to find inducement before reaching the predisposition question.
This argument implicitly shifted the burden to the defense to disprove entrapment. The two-step
process that the State proposed to the jury raises serious concerns about how the jury approached
the entrapment defense.
¶ 56 Therefore, we reject the State’s suggestion that its evidence on inducement dispenses with
our need to determine prejudice. We note that, although inducement and prejudice are distinct
elements of the entrapment defense, they are very much interrelated. Inducement focuses on the
government’s actions, whereas predisposition “focuses upon whether the defendant was an
‘unwary innocent’ or, instead, an ‘unwary criminal’ who readily availed himself of the opportunity
to perpetrate the crime.” Mathews v. United States, 485 U.S. 58, 63 (1988) (quoting Sherman v.
United States, 356 U.S. 369, 372 (1958)). The two inquiries are often closely linked because the
need for greater inducement may suggest that the defendant was not predisposed to commit the
crime, while, conversely, a ready response to minimal inducement may indicate predisposition.
¶ 57 Next, we consider whether the failure to offer a readily available definition of
predisposition was prejudicial to defendant. The refusal to clarify the jury’s confusion over the
meaning of “predisposition” created a serious danger that the jury convicted defendant based upon
a consideration of predisposition untethered from the relevant timeframe, i.e., prior to his exposure
to government agents. For example, it is entirely feasible that the jury considered the predisposition
question focused on the timeframe when defendant arrived at the hotel, condoms and cash in
hand—a timeframe whereby it would be much easier to conclude defendant was predisposed to
commit the offenses.
¶ 58 Of course, 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
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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.
The State argues that defendant was not prejudiced by this, because character witnesses testified
that defendant never showed any sexual interest or inclination toward minors. We, however, agree
with defendant. The jury might have thought that, since these witnesses were defendant’s family
and friends, they were biased or simply unaware of defendant’s sexual interest in minors—an
interest which defendant presumably would keep secret from them. Conversely, defendant’s lack
of a criminal record would have been objective evidence that defendant was not predisposed to
commit the offenses before his exposure to law enforcement.
¶ 59 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.” While we find this characterization of the instructions unfortunate in that it suggested to
the jurors that the salient terms might be beyond their understanding, there is no question that both
the failure to define predisposition to the jury and the State’s burden-shifting explanation of
inducement certainly muddied the waters. Strickland’s prejudice prong is not simply an “outcome-
determinative” test but may be satisfied if the defendant demonstrates that counsel’s deficient
performance rendered the result of the trial unreliable or the proceeding fundamentally unfair.
People v. Jackson, 205 Ill. 2d 247, 259 (2001). Here, the cumulative effect of counsel’s deficient
performance rendered the proceeding unreliable under Strickland. Therefore, we reverse
defendant’s convictions and remand the matter to the trial court for a new trial.
¶ 60 Since we reverse and remand, we need not address the remaining issues on appeal. We
must, however, review the sufficiency of the evidence to determine whether it sufficed for double
jeopardy purposes. See People v. Macon, 396 Ill. App. 3d 451, 458 (2009) (“where a conviction
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has been set aside because of an error in the proceedings leading to the conviction,” the State may
retry the defendant; thus, the appellate court must review the sufficiency of the evidence to
“prevent the risk of exposing [the] defendant to double jeopardy”). After reviewing the record 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. Our determination is not binding on retrial and does not
express our opinion as to defendant’s guilt or innocence.
¶ 61 III. CONCLUSION
¶ 62 Based on the foregoing, we reverse defendant’s convictions and remand for a new trial.
¶ 63 Reversed and remanded.
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No. 2-17-0900
Decision Under Review: Appeal from the Circuit Court of Kane County, No. 15-CF-44; the Hon. Linda S. Abrahamson, Judge, presiding.
Attorneys James E. Chadd and Thomas A. Lilien, of State Appellate for Defender’s Office, of Elgin (Bryan G. Lesser, of Edelman, Appellant: Combs, Latturner & Goodwin, LLC, of Chicago, of counsel), for appellant.
Attorneys Joseph H. McMahon, State’s Attorney, of St. Charles (Patrick for Delfino, Edward R. Psenicka, and Stephanie Hoit Lee, of State’s Appellee: Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
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