FILED August 3, 2015 Carla Bender NO. 4-13-0799 4th District Appellate Court, IL IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from Plaintiff-Appellee, ) Circuit Court of v. ) Vermilion County STANLEY A. DYE, ) No. 13CF90 Defendant-Appellant. ) ) Honorable ) Craig H. DeArmond, ) Judge Presiding.

JUSTICE APPLETON delivered the judgment of the court, with opinion. Presiding Justice Pope and Justice Steigmann concurred in the judgment and opinion.

OPINION ¶1 In a bench trial, the trial court found defendant, Stanley A. Dye, guilty of

threatening a public official (720 ILCS 5/12-9 (West 2012)). The court sentenced him to

imprisonment for three years. He appeals, challenging the sufficiency of the evidence. We

reverse the trial court's judgment because when we look at the evidence in the light most

favorable to the prosecution, we conclude it would be impossible for any rational trier of fact to

find, beyond a reasonable doubt, that defendant made a "true threat" within the meaning of

Virginia v. Black,

(2003). His threat, " 'I'm gonna get you,' " was

ambiguous as to whether the intended meaning was violent retribution or nonviolent retribution,

and nothing about the context of the threat could reasonably resolve the ambiguity. ¶2 I. BACKGROUND

¶3 On February 7, 2013, defendant had an appointment with his attorney, Jacqueline

Lacy, the Vermilion County public defender. The appointment was in her office, on the third

floor of the courthouse. In their meeting, Lacy told him she had some bad news: because he had

been less than forthright with her, she had subpoenaed some documents, and as a result, she had

inadvertently uncovered evidence that was harmful to his case. The State would receive a copy

of the subpoenaed documents. Evidently, the documents pertained to the chemical testing of a

crack pipe.

¶4 Defendant became irate and demanded that Lacy have the crack pipe retested.

She declined to do so. He raised his voice. She raised her voice. He threatened to complain

about her to Judge DeArmond and request a different attorney. She said to go ahead, but she

predicted that Judge DeArmond would decline to appoint him a different attorney. He accused

her of selling him out and working for the State. She told him he "needed to" leave her office.

He did so.

¶5 As he was exiting through the waiting room, defendant told Lacy, two or three

times, " 'I'm gonna get you.' " He pointed at her or at the floor as he said those words. Lacy

asked him, " 'Are you fucking threatening me?' " According to defendant's testimony, he replied,

" 'No, no. I ain't threatening you.' " A paralegal who worked in the public defender's office,

Andrew Bower, had stepped between defendant and Lacy because of "the way [defendant] was

standing, his mannerisms, how aggressive he was with his speech, his posture." Bower put his

hand on defendant's shoulder, to guide him out the door and into the hall. Defendant ignored

him and left.

¶6 Lacy, who was scared, trembling, and on the verge of tears, called the police.

-2- ¶7 II. ANALYSIS

¶8 Various statutes, including section 12-9 of the Criminal Code of 2012 (720 ILCS

5/12-9 (West 2012)), criminalize the making of threats. From the Supreme Court's decision in

Watts v. United States,

(1969), the appellate court has derived the rule that if

the State charges the defendant with making a threat of violence, the threat must be a "true

threat," or else the prosecution would violate the first amendment (U.S. Const., amend. I), made

applicable to the states by the fourteenth amendment (U.S. Const., amend. XIV; Black,

). People v. Sucic,

(2010) (citing Watts,

);

People v. Diomedes,

(citing Sucic,

).

¶9 In Black, the Supreme Court described a "true threat" as follows:

" 'True threats' encompass those statements where the

speaker means to communicate a serious expression of an intent to

commit an act of unlawful violence to a particular individual or

group of individuals. [Citations.] The speaker need not actually

intend to carry out the threat. Rather, a prohibition on true threats

protect[s] individuals from the fear of violence and from the

disruption that fear engenders, in addition to protecting people

from the possibility that the threatened violence will occur.

[Citation.] Intimidation in the constitutionally proscribable sense

of the word is a type of true threat, where a speaker directs a threat

to a person or group of persons with the intent of placing the

victim in fear of bodily harm or death." (Emphases added and

internal quotation marks omitted.) Black,

.

-3- ¶ 10 Thus, a "true threat" requires intentionality (id.), in contrast to section 12-9(a)(1)

(720 ILCS 5/12-9(a)(1) (West 2012)), which, by its terms, requires merely knowledge

("knowingly"). Because we must interpret section 12-9 (720 ILCS 5/12-9 (West 2012)) "within

the confines of the first amendment" (Diomedes,

); and because

the first amendment allows a state to punish an alleged threat of violence only if it is a "true

threat" (id.; Sucic,

); and because a "true threat" is intentional, not

merely knowing (Black,

), we interpret section 12-9 as requiring

intentionality. See also Elonis v. United States, ___ U.S. ___, ___,

(2015)

(the government had to prove conscious wrongdoing, not merely that a reasonable person would

regard the communications as threats). (In his brief, defendant does not appear to attack the

constitutionality of section 12-9. He does not contend that because section 12-9, by its terms,

requires only knowledge instead of intent, the statute violates the first amendment. Instead, he

takes the position that, when assessing the sufficiency of the evidence, we should substitute

intent for knowledge as the required mental state. He argues, for example: "There is no

evidence that [defendant] intended for his statement to threaten Lacy.")

¶ 11 Obviously, no witness had direct sensory access to defendant's mind and intent.

Therefore, the trier of fact could determine what he intended only by drawing inferences from his

conduct, including what he said. See People v. Ybarra,

(1987).

Looking at the evidence in the light most favorable to the prosecution, would it be possible for

any rational trier of fact to find, beyond a reasonable doubt, that defendant intended to physically

threaten Lacy? See People v. Cunningham,

(2004). He told her repeatedly,

" 'I'm gonna get you.' " He did not thereby say he necessarily was going to harm her physically.

To "get" someone means to "[p]unish, injure, or kill" someone, "especially as retribution." The

-4- New Oxford American Dictionary 712 (2001). "Getting" someone can mean injuring or killing

that person, but alternatively it can mean punishing that person in a nonviolent way. The New

Oxford American Dictionary gives this example: " '[W]ait until Dad comes home, then you'll get

it!' " (Emphasis omitted.)

"Get," in this context, probably does not mean injury or death.

Likewise, the victim of a prank or of Machiavellian office politics might tell the perpetrator, "I'll

get you for this," without intending to be understood that the retribution will be physical. The

Internal Revenue Service will get you if you lie in your income tax return.

¶ 12 "Get" is just as apt a word for nonviolent punishment as violent punishment, and

some additional facts, beyond the mere utterance, would be necessary to infer, beyond a

reasonable doubt, that "I'm going to get you" was intended as a threat of violence. Did defendant

intend to be understood as making a physical threat? See Black,

("Intimidation

in the constitutionally proscribable sense of the word is a type of true threat, where a speaker

directs a threat to a person or group of persons with the intent of placing the victim in fear of

bodily harm or death."). Answering that question would be like flipping a coin. We should draw

only reasonable inferences in favor of the prosecution; we should not make random speculations

in favor of the prosecution. Cunningham,

. When reviewing the record, we see

no evidence justifying a reasonable inference that when defendant told Lacy, " 'I'm gonna get

you,' " he intended to convey the idea of violent retribution as opposed to nonviolent retribution.

Granted, defendant was shouting, as was Lacy, and Bower described defendant's "speech" and

"posture" as "aggressive." When people are angry, however, they tend to become loud and tense

and to make vigorous gestures—even when threatening to do something nonviolent. Defendant

had just got done warning Lacy he was going to complain about her to Judge DeArmond. That

cannot be a pleasant prospect for a public defender. Another way to "get back" at a reputedly

-5- disloyal attorney would have been to report the attorney to the Attorney Registration and

Disciplinary Commission. On the record before us, we do not see how it would be possible for

any rational trier of fact to infer, beyond a reasonable doubt, that when defendant told Lacy,

" 'I'm gonna get you,' " he meant violent retribution as opposed to these forms of nonviolent

retribution—one of which he had just got done discussing with her. In the absence of any

evidence that could justify a finding, beyond a reasonable doubt, that defendant's threat was a

"true threat," we reverse his conviction on the ground that it violates the first amendment, made

applicable to the states by the fourteenth amendment. See Black,

(" 'True threats'

encompass those statements where the speaker means to communicate a serious expression of an

intent to commit an act of unlawful violence to a particular individual or group of individuals.").

¶ 13 III. CONCLUSION

¶ 14 For the foregoing reasons, we reverse the trial court's judgment.

¶ 15 Reversed.

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