{ "id": 4022732, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. COREY BRADDOCK, Defendant-Appellant", "name_abbreviation": "People v. Braddock", "decision_date": "2004-03-24", "docket_number": "No. 1-03-0404", "first_page": "115", "last_page": "125", "citations": [ { "type": "official", "cite": "348 Ill. App. 3d 115" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "615 N.E.2d 391", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "pin_cites": [ { "page": "393" } ], "opinion_index": 0 }, { "cite": "245 Ill. App. 3d 810", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5384294 ], "year": 1993, "pin_cites": [ { "page": "813" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/245/0810-01" ] }, { "cite": "119 N.E.2d 221", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1954, "opinion_index": 0 }, { "cite": "2 Ill. 2d 476", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 12130359 ], "year": 1954, "pin_cites": [ { "page": "482" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/2/0476-01" ] }, { "cite": "731 N.E.2d 844", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2000, "pin_cites": [ { "page": "853" } ], "opinion_index": 0 }, { "cite": "313 Ill. App. 3d 902", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 186545 ], "year": 2000, "pin_cites": [ { "page": "913" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/313/0902-01" ] }, { "cite": "525 N.E.2d 572", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "171 Ill. App. 3d 313", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3618291 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/ill-app-3d/171/0313-01" ] }, { "cite": "537 N.E.2d 317", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1989, "pin_cites": [ { "page": "319" } ], "opinion_index": 0 }, { "cite": "127 Ill. 2d 302", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5564025 ], "year": 1989, "pin_cites": [ { "page": "307" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/127/0302-01" ] }, { "cite": "730 N.E.2d 545", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2000, "pin_cites": [ { "page": "551" } ], "opinion_index": 0 }, { "cite": "313 Ill. App. 3d 718", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 186507 ], "year": 2000, "pin_cites": [ { "page": "724" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/313/0718-01" ] }, { "cite": "743 N.E.2d 521", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2000, "pin_cites": [ { "page": "536" } ], "opinion_index": 0 }, { "cite": "194 Ill. 2d 305", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 1096295 ], "year": 2000, "pin_cites": [ { "page": "330" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/194/0305-01" ] }, { "cite": "376 N.E.2d 381", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 4, "year": 1978, "pin_cites": [ { "page": "384" }, { "page": "384" }, { "page": "387" } ], "opinion_index": 0 }, { "cite": "60 Ill. App. 3d 183", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3350426 ], "weight": 4, "year": 1978, "pin_cites": [ { "page": "187" }, { "page": "187" }, { "page": "191" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/60/0183-01" ] }, { "cite": "283 N.E.2d 681", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "51 Ill. 2d 525", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5392199 ], "year": 1971, "pin_cites": [ { "page": "530" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/51/0525-01" ] }, { "cite": "635 N.E.2d 463", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "pin_cites": [ { "page": "467" } ], "opinion_index": 0 }, { "cite": "262 Ill. App. 3d 869", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2852050 ], "year": 1994, "pin_cites": [ { "page": "875-76" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/262/0869-01" ] }, { "cite": "224 N.E.2d 793", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1967, "opinion_index": 0 }, { "cite": "36 Ill. 2d 530", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5378578 ], "year": 1967, "pin_cites": [ { "page": "552-53" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/36/0530-01" ] }, { "cite": "657 N.E.2d 953", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 7, "year": 1995, "pin_cites": [ { "page": "961" }, { "page": "961-62" }, { "page": "961", "parenthetical": "in context of stalking statute, court held that element of threat in the stalking statute is integral part of the offense; stalking offense cannot be committed without initiation of the threat and, therefore, this speech element of the statute is not constitutionally protected" }, { "page": "962" }, { "page": "962" }, { "page": "963" }, { "page": "963" } ], "opinion_index": 0 }, { "cite": "167 Ill. 2d 210", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 222743 ], "weight": 7, "year": 1995, "pin_cites": [ { "page": "226" }, { "page": "227" }, { "page": "227" }, { "page": "228" }, { "page": "229" }, { "page": "229" }, { "page": "231" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/167/0210-01" ] }, { "cite": "776 N.E.2d 828", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 5, "year": 2002, "pin_cites": [ { "page": "831" }, { "page": "831" }, { "page": "832", "parenthetical": "erotic dancing is expressive conduct protected by first amendment; however, erotic dancing involving dancer touching sexual organs of patron for money for purpose of patron's sexual arousal is not protected conduct because it falls within the specified strictures of section 11 - 14(a" }, { "page": "833" }, { "page": "833" } ], "opinion_index": 0 }, { "cite": "333 Ill. App. 3d 783", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 486927 ], "weight": 5, "year": 2002, "pin_cites": [ { "page": "785" }, { "page": "786" }, { "page": "787" }, { "page": "788" }, { "page": "788" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/333/0783-01" ] } ], "analysis": { "cardinality": 938, "char_count": 23774, "ocr_confidence": 0.756, "pagerank": { "raw": 5.1384712885088094e-08, "percentile": 0.3243646637313604 }, "sha256": "68096ca2771c6068e6310a43a2adf8c50d0c7dd9843174082da70fcf983e7469", "simhash": "1:17706dc6f74092c1", "word_count": 3974 }, "last_updated": "2023-07-14T22:23:16.717830+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. COREY BRADDOCK, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE KARNEZIS\ndelivered the opinion of the court:\nFollowing a bench trial, the trial court convicted defendant Corey Braddock of solicitation of a sex act in violation of section 11 \u2014 14.1(a) of the Illinois Criminal Code of 1961 (720 ILCS 5/11 \u2014 14.1(a) (West 2002)) (Criminal Code) and sentenced him to six months\u2019 supervision. The court denied defendant\u2019s motion for a new trial and motion in arrest of judgment. Defendant appeals the denial of his posttrial motions, arguing that his conviction should be reversed because (1) section 11 \u2014 14.1(a) is unconstitutional because it is overbroad and vague; (2) he was not proven guilty beyond a reasonable doubt; and (3) a fatal variance existed between the evidence presented and the charges in the complaint. We affirm.\nBackground\nDefendant, a City of Chicago police officer assigned to the Internal Affairs Division (IAD), was arrested on September 24, 2003, for offering Johanna Kramp, an undercover Chicago police officer working a prostitution sting investigation, money in exchange for sex. Defendant was charged with \u201csolicitation for prostitution in that he approached the complainant and offered $50.00 U.S.C. in exchange for the performance of sexual intercourse in violation of 720 ILCS 5/11\u2014 15(a)(1).\u201d At trial, over defendant\u2019s objection, the court allowed the State to amend the complaint to allege that defendant \u201ccommitted the offense of solicitation of a sex act in that he approached the complainant and offered $50.00 U.S.C. in exchange for the performance of sexual intercourse, an act of sexual penetration as defined in 720 ILCS 5/12 \u2014 12(f) in violation of 720 Illinois Compiled Statutes 5/11\u2014 14.1(a).\u201d The court offered defendant a continuance in which to prepare his case given the amended complaint but defendant declined and elected to proceed to trial.\nAt trial, Officer Kramp testified that, at approximately 3:40 a.m. on September 24, 2003, she was in civilian clothes working as a decoy in the 900 block of West Belmont Avenue in Chicago. She noticed the driver of a white Ford Explorer staring at her as he passed her three or four times at a reduced speed. She identified defendant as the driver. Defendant pulled his car into an alley, parked and got out of the car. He approached Officer Kramp and asked her whether she was looking for a date. She said she was and asked him what he was looking for. He replied that he was looking for sex. She understood \u201csex\u201d to mean \u201can act of sexual penetration.\u201d Officer Kramp then asked how much money defendant had and he responded by asking how much she charged. When she said $30 or $40, he responded \u201cfine, okay.\u201d\nOfficer Kramp told defendant to meet her at 3229 Wilton in his car. Officer Kramp started walking through the alley to that location and defendant returned to his car. As he was driving through the alley, defendant stopped Officer Kramp again. Officer Kramp asked him whether he had the money and defendant told her not to worry about it, that he was a police officer and would not \u201cfuck [her] around.\u201d He showed Officer Kramp his police star, told her he was with LAD and he was \u201cjust looking to get his nut off.\u201d From her experience working in plain clothes, Officer Kramp was familiar with the street terms used during the solicitation of prostitution and her only understanding of the term \u201cget my nut off was that it meant \u201can act that would cause him to ejaculate.\u201d\nOfficer Kramp asked defendant to show her the money. He told her that he could go get money. He asked her whether she was at least 17 years old and whether she had a condom. When she replied that she was 23 and did have a condom, defendant left. Officer Kramp radioed her backup officers and arranged for help should the transaction occur. When defendant returned, she asked him again whether he had the money. \u201cHe indicated that he did have the money, $50, and showed [her] some money.\u201d Officer Kramp saw money in defendant\u2019s hand and told him to pull into a parking spot. She then gave the prearranged signal to her backup officers indicating that the transaction was complete. Defendant slowly drove past the parking spot but two backup officers in unmarked cars stopped him. This was the last contact Officer Kramp had with defendant. She wrote a summary of the events on the arrest report, stating that defendant asked for sex. She explained that \u201csex\u201d is the same terminology as \u201csexual intercourse\u201d.\nOfficer Ricardo Fernandez testified that he stopped defendant\u2019s car after he saw Officer Kramp give the signal. During the pat down, defendant stated that he was a police officer and asked that he be given a break. Officer Fernandez did not inventory defendant\u2019s wallet although that was standard procedure.\nAfter the close of the State\u2019s case, defendant moved for a directed finding, arguing that the State failed to prove the elements of the amended complaint because there was no testimony that defendant solicited or that Officer Kramp agreed to perform \u201csexual intercourse\u201d as specified in the complaint. Defendant argued that the only testimony reference was to the generic term \u201csex,\u201d which could encompass a myriad of acts besides sexual penetration. The court agreed that the complaint was very specific in its allegation that defendant solicited \u201csexual intercourse, an act of sexual penetration\u201d but stated that Officer Kramp testified that she understood the word \u201csex\u201d to mean an act of sexual penetration and denied the motion.\nDefendant then testified. He was driving home at 3:40 a.m. from an investigation location which he could not disclose when he saw a girl who looked \u201cpretty young\u201d standing on the street. He pulled over and asked whether he could help her with anything. She asked him whether he was looking for a date and he said he was not and that he would like to help her. He moved his car to Wilton at her behest. He told the girl about opportunities to get off the street and about Sister-to-Sister, a program to which he referred women in need of help. After she asked him again whether he was looking for a date, he told her that he was a police officer with IAD and terminated the conversation because she did not want help. Defendant denied driving by Officer Kramp multiple times, asking for sex, saying he wanted to \u201cget [his] nut off,\u201d asking her age or whether she had a condom.\nIn rebuttal, Officer Kramp testified that defendant never told her about Sister-to-Sister, alternatives to working on the street or anything other than what she had related earlier.\nFollowing closing argument, the court stated that it found Officer Kramp credible and that the State proved defendant guilty beyond a reasonable doubt. Defendant filed a motion for a new trial and a motion in arrest of judgment. The court denied the motions and sentenced defendant to six months\u2019 supervision. Defendant timely appeals the court\u2019s denial of his posttrial motions.\nAnalysis\nConstitutionality of Statute\nDefendant appeals the court\u2019s denial of his motion in arrest of judgment wherein he argued that (a) the statute is unconstitutionally overbroad and vague and (b) the complaint did not charge defendant with sufficient specificity to allow him to prepare his defense or to plead a resulting conviction as a bar to future prosecution arising from the same conduct. On appeal, defendant argues only that the statute is unconstitutionally overbroad and vague and, therefore, void. We review the constitutionality of a statute de novo. People v. Hill, 333 Ill. App. 3d 783, 785, 776 N.E.2d 828, 831 (2002).\nSection 11 \u2014 14.1(a) states:\n\u201cAny person who offers a person not his or her spouse any money, property, token, object, or article or anything of value to perform any act of sexual penetration as defined in Section 12 \u2014 12 of this Code, or any touching or fondling of the sex organs of one person by another person for the purpose of sexual arousal or gratification, commits the offense of solicitation of a sexual act.\u201d 720 ILCS 5/11 \u2014 14.1(a) (West 2002).\nThe doctrine of overbreadth only applies to invalidate a statute if the statute inhibits the exercise of rights of expression or association protected by the first amendment. Hill, 333 Ill. App. 3d at 786, 776 N.E.2d at 831; People v. Bailey, 167 Ill. 2d 210, 226, 657 N.E.2d 953, 961 (1995). Freedom of speech is a basic first amendment right and, arguably, defendant should be free to communicate with any woman he chooses in any way he chooses, including, under defendant\u2019s scenario, offering her items of value in exchange for sex. However, \u201c \u2018[wjhere speech is an integral part of unlawful conduct, it has no constitutional protection.\u2019 \u201d Bailey, 167 Ill. 2d at 227, 657 N.E.2d at 961-62, quoting Chicago Real Estate Board v. City of Chicago, 36 Ill. 2d 530, 552-53, 224 N.E.2d 793 (1967). Our legislature has determined that offering money or items of value in exchange for sex is unlawful conduct. 720 ILCS 5/11 \u2014 14.1(a) (West 2002). Therefore, when defendant offered Officer Kramp $50 in exchange for sex, he was not engaged in a protected activity because he exercised his right to free speech in the commission of a criminal offense. See Hill, 333 Ill. App. 3d at 787, 776 N.E.2d at 832 (erotic dancing is expressive conduct protected by first amendment; however, erotic dancing involving dancer touching sexual organs of patron for money for purpose of patron\u2019s sexual arousal is not protected conduct because it falls within the specified strictures of section 11 \u2014 14(a) (720 ILCS 5/11 \u2014 14(a) (West 2002)). The element of an offer of something of value is an integral part of the solicitation offense because the offense cannot occur without such an offer. Therefore, the element of speech in the solicitation statute, the offer, is not constitutionally protected. Accordingly, no first amendment concerns are at issue here and the statute is not void for overbreadth. See Bailey, 167 Ill. 2d at 227, 657 N.E.2d at 961 (in context of stalking statute, court held that element of threat in the stalking statute is integral part of the offense; stalking offense cannot be committed without initiation of the threat and, therefore, this speech element of the statute is not constitutionally protected).\nDefendant also argues that the statute is unconstitutionally vague because it encompasses not only the offer of money but the offer of any valuable item in exchange for sex and that this would make a prostitute of any woman who agrees to sex in the context of a social situation. In order to survive a vagueness challenge, a criminal statute must (a) provide a person of ordinary intelligence with a reasonable opportunity to distinguish between lawful and unlawful conduct and (b) adequately define the offense to prevent arbitrary and discriminatory enforcement. Hill, 333 Ill. App. 3d at 788, 776 N.E.2d at 833. Where, as here, the statute does not implicate first amendment concerns, the challenging party must show that the statute is vague as applied to the conduct for which the party was prosecuted. Hill, 333 Ill. App. 3d at 788, 776 N.E.2d at 833; Bailey, 167 Ill. 2d at 228, 657 N.E.2d at 962. Accordingly, only the vagueness of the term \u201cmoney\u201d is at issue because it is for offering money in exchange for sex that defendant was prosecuted.\nThe word \u201cmoney\u201d is not defined in the statute and we will, therefore, assume that the word has its \u201cordinary and popularly understood meanings.\u201d Bailey, 167 Ill. 2d at 229, 657 N.E.2d at 962. Giving the word \u201cmoney\u201d its plain and ordinary meaning, it is clear that \u201cmoney\u201d is in no way a vague term. It can only be understood to mean currency of some type, such as the bills that defendant showed Officer Kramp. A statute must convey \u201csufficiently definite warnings that can be understood when measured by common understanding and practices\u201d and \u201cimpossible levels of specificity are not required.\u201d Bailey, 167 Ill. 2d at 229, 657 N.E.2d at 963. Here, the statute is not vague as applied to defendant\u2019s conduct, as alleged in the complaint, because it unambiguously prohibits that conduct by providing adequate and clearly understandable notice that the offer of money in exchange for sex is proscribed. Although there may be cases in which some uncertainty exists as to a statute\u2019s applicability, that does not render the statute unconstitutional as to conduct about which no uncertainty exists. People v. Wilkenson, 262 Ill. App. 3d 869, 875-76, 635 N.E.2d 463, 467 (1994), quoting People v. Vandiver, 51 Ill. 2d 525, 530, 283 N.E.2d 681 (1971). Section 11 \u2014 14.1(a) is neither overbroad nor vague as applied here and thus not unconstitutional.\nDefendant cites to People v. Johnson, 60 Ill. App. 3d 183, 376 N.E.2d 381 (1978), in support of his argument that the statute is an unconstitutionally vague and overbroad attempt to regulate sexual conduct in general, including sexual acts resulting from ordinary social motives, such as a woman agreeing to sex in exchange for an expensive dinner or a date at a concert. In Johnson, the defendant contested the constitutionality of the statute under which she was found guilty of prostitution for offering to perform a sex act for money, arguing that it was an overbroad and vague attempt to regulate sexual conduct in general. The statute, section 11 \u2014 14(a) of the Criminal Code, stated that \u201c[a]ny person who performs, offers or agrees to perform any of the following acts for money commits the act of prostitution: *** [a]ny act of sexual intercourse; or *** [a]ny act of deviate sexual conduct.\u201d Ill. Rev. Stat. 1975, ch. 38, par. 11 \u2014 14(a) (now 720 ILCS 5/11 \u2014 14(a) (West 2002)). The Johnson court determined that the statute was specifically directed at a defined \u201cevil,\u201d the performance or agreement to perform sex acts for money. Johnson, 60 Ill. App. 3d at 187, 376 N.E.2d at 384. Since the statute applied only to those who perform, offer or agree to perform sex acts for money, the court determined that the statute could not apply to sexual acts resulting from social situations and did not discourage \u201cexchanges of sexual acts as a part of social companionship or for gifts of material goods.\u201d 60 Ill. App. 3d at 187, 376 N.E.2d at 384. The statute was, therefore, not overbroad or vague.\nBased on Johnson, defendant argues that, because the statute at issue here prohibits all types of consideration, not just money, it necessarily must be overbroad and vague because it makes a prostitute of any woman who offers, performs or agrees to perform sexual acts in exchange for an expensive dinner or concert. We note, however, that the statute at issue here greatly differs in its focus from the statute at issue in Johnson. In Johnson, the statute focused on the prostitute and her offer to sell sexual favors. In contrast, the statute here focuses on the person on the other side of a sexual transaction, the prospective client and his or her offer to purchase sexual favors. Contrary to defendant\u2019s assertions, the statute does not make a prostitute of someone receiving such an offer. The statute focuses on the person making the offer, on the buyer and not the seller. Nor does the statute attempt to punish \u201cmere conversation\u201d or criminalize, to use defendant\u2019s example, a woman\u2019s request for an expensive gift in exchange for sexual favors. Clearly, it is the \u201cclient\u2019s\u201d offer to purchase a sex act which is illegal and the statute is entirely clear as to what constitutes such an offer.\nLastly, because the statute does not implicate first amendment rights and because defendant\u2019s conduct clearly falls within the strictures of the statute, defendant has no standing to raise a facial challenge to the statute. Bailey, 167 Ill. 2d at 231, 657 N.E.2d at 963. The court did not err in denying defendant\u2019s motion in arrest of judgment.\nReasonable Doubt\nDefendant argues that he was not proven guilty beyond a reasonable doubt. When considering a challenge to the sufficiency of the evidence, we must determine, viewing the evidence in the light most favorable to the prosecution, whether any rational trier of fact could have found the essential elements of the crime were proven beyond a reasonable doubt. People v. Hall, 194 Ill. 2d 305, 330, 743 N.E.2d 521, 536 (2000). Defendant was charged with committing \u201cthe offense of solicitation of a sex act in that he approached the complainant and offered $50.00 U.S.C. in exchange for the performance of sexual intercourse, an act of sexual penetration as defined in 720 ILCS 5/12 \u2014 12(f) in violation of 720 Illinois Compiled Statutes 5/11\u2014 14.1(a).\u201d In order to commit the offense of solicitation of a sexual act, defendant must be shown to have offered a person not his spouse money or something of value \u201cto perform any act of sexual penetration as defined in Section 12 \u2014 12 of this Code, or any touching or fondling of the sex organs of one person by another person for the purpose of sexual arousal or gratification.\u201d 720 ILCS 5/11 \u2014 14.1(a) (West 2002). Those elements are clearly shown here.\nOfficer Kramp testified that defendant asked her for \u201csex,\u201d told her that he wanted to \u201cget his nut off,\u201d requested her price for sex, agreed thereto, showed her the money and moved his car to the location she suggested. Officer Kramp testified that she understood defendant to have solicited her for sexual intercourse because, in her experience, \u201csex\u201d meant \u201can act of sexual penetration\u201d and \u201cget his nut off\u2019 meant \u201can act that would cause him to ejaculate.\u201d The court stated that it found Officer Kramp credible and that, based on the credibility of the witnesses, it found defendant guilty beyond a reasonable doubt.\nCredibility of witnesses and assessment of their testimony and the inferences to be drawn therefrom are for the trier of fact to determine, and we will not substitute our judgment for that of the tri\u00e9r of fact on those issues unless the evidence is so improbable as to justify reasonable doubt as to the defendant\u2019s guilt. People v. Mullen, 313 Ill. App. 3d 718, 724, 730 N.E.2d 545, 551 (2000); People v. Slim, 127 Ill. 2d 302, 307, 537 N.E.2d 317, 319 (1989). The court was the trier of fact here. The court believed Officer Kramp rather than defendant, reiterating its credibility determination during the hearing on defendant\u2019s posttrial motions and noting that it had considered defendant\u2019s demeanor and manner while testifying. This credibility determination was for the court to make and not so improbable as to justify reasonable doubt as to defendant\u2019s guilt.\nDefendant cites to People v. Thoma, 171 Ill. App. 3d 313, 525 N.E.2d 572 (1988), wherein the court found that the defendant took no substantial step toward the crime of attempted patronizing a prostitute where the defendant\u2019s conduct consisted only of speech. Thoma is inapposite. In order to patronize a prostitute, one must actually have engaged in an act of sexual penetration with a prostitute or entered or remained in a place of prostitution with the intent to engage in such an act. 720 ILCS 5/11 \u2014 18 (West 2002). In contrast, the solicitation-of-a-sexual-act statute has no intent element and speech alone is, therefore, sufficient to determine whether the offense has been committed. The offense here was complete when the salient words, an offer to purchase a sexual act for money, were spoken. The court found that the offer was proven beyond a reasonable doubt and we will not substitute our judgment of disputed evidence for the trial court\u2019s where the court heard the evidence, observed the witnesses and arrived at a reasonable and plausible conclusion. Johnson, 60 Ill. App. 3d at 191, 376 N.E.2d at 387.\nFatal Variance\nDefendant argues that a fatal variance existed between the charge that defendant solicited \u201csexual intercourse, an act of sexual penetration\u201d and the proof at trial, asserting that there was no evidence that defendant specifically asked for sexual intercourse as charged in the indictment. We disagree. Granted that \u201csexual intercourse\u201d and \u201csexual penetration\u201d are not synonymous, sexual intercourse being only one of many forms of sexual penetration. However, the commonly understood meaning of \u201csex\u201d is sexual intercourse, and we do not find the fact that defendant used the word \u201csex\u201d rather than \u201csexual intercourse\u201d in his negotiation with Officer Kramp or Officer Kramp\u2019s failure to ask defendant exactly what sexual act would suffice to \u201cget his nut off\u2019 fatal to the State\u2019s case. Officer Kramp testified to her understanding, based on the words defendant used to solicit her, that he intended sexual intercourse/penetration/ ejaculation. Defendant\u2019s words must be taken in context (People v. Gemeny, 313 Ill. App. 3d 902, 913, 731 N.E.2d 844, 853 (2000)) and his subsequent questions to Officer Kramp regarding whether she had a condom and was more than 17 years of age reinforce that he intended sexual intercourse of some sort in exchange for the proffered money. Given the court\u2019s credibility finding, we find the evidence supports the court\u2019s determination that defendant is guilty beyond a reasonable doubt and the court did not err in denying defendant\u2019s motion for a new trial.\nMoreover, although \u201cevery material allegation in the indictment must be proved beyond a reasonable doubt\u201d in order to convict a defendant, \u201can immaterial allegation need not be so proved. An averment is material when it is essential to the crime or cause of action and cannot be stricken from the indictment or complaint without leaving it insufficient.\u201d People v. Taranto, 2 Ill. 2d 476, 482, 119 N.E.2d 221 (1954). Clearly the averment that defendant solicited sexual penetration is the essential element of the offense here. If the phrase \u201csexual intercourse\u201d were stricken from the complaint, the remaining language would still clearly state the required statutory elements. The type of sexual penetration is entirely immaterial to the sufficiency of the charge and, therefore, the phrase \u201csexual intercourse\u201d is mere surplusage and need not be proven. As long as solicitation of sexual penetration of some sort is proven beyond a reasonable doubt, the proof conforms to the charge.\nFor the reasons stated above, we affirm the decision of the trial court.\nAffirmed.\nHOFFMAN, P.J., and SOUTH, J., concur.\nSection 11 \u2014 15(a)(1) provides that any person who solicits another for the purpose of prostitution commits \u201csoliciting for a prostitute.\u201d 720 ILCS 5/11 \u2014 15(a)(1) (West 2002). This section \u201ccovers only \u2018middlemen\u2019 who solicit customers for the prostitute and not the prospective customers or the prostitute\u201d (People v. Jones, 245 Ill. App. 3d 810, 813, 615 N.E.2d 391, 393 (1993)) and was clearly the wrong section under which to charge defendant.\nDuring the sentencing hearing, the State was prepared to present the testimony of IAD Sergeant Koconis that there was no such investigation.\nSection 12 \u2014 12(f) defines \u201csexual penetration\u201d as\n\u201cany contact, however slight, between the sex organ or anus of one person by an object, the sex organ, mouth or anus of another person, or any intrusion, however slight, of any part of the body of one person or of any animal or object into the sex organ or anus of another person, including but not limited to cunnilingus, fellatio or anal penetration. Evidence of emission of semen is not required to prove sexual penetration.\u201d 720 ILCS 5/12 \u2014 12(f) (West 2002).", "type": "majority", "author": "JUSTICE KARNEZIS" } ], "attorneys": [ "Law Offices of Joseph V. Roddy, of Chicago (Joseph V. Roddy, of counsel), for appellant.", "Richard A. Devine, State\u2019s Attorney, of Chicago (Renee Goldfarb, Kathryn Schierl, and Mary L. Boland, Assistant State\u2019s Attorneys, of counsel), for the Feople." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. COREY BRADDOCK, Defendant-Appellant.\nFirst District (3rd Division)\nNo. 1\u201403\u20140404\nOpinion filed March 24, 2004.\nRehearing denied May 26, 2004.\nLaw Offices of Joseph V. Roddy, of Chicago (Joseph V. Roddy, of counsel), for appellant.\nRichard A. Devine, State\u2019s Attorney, of Chicago (Renee Goldfarb, Kathryn Schierl, and Mary L. Boland, Assistant State\u2019s Attorneys, of counsel), for the Feople." }, "file_name": "0115-01", "first_page_order": 133, "last_page_order": 143 }