No. 1-16-0184 Second Division July 25, 2019 ______________________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________ THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 15 CR 6760 ) BRIAN CRAWFORD, ) Honorable ) Frank Zelezinski, Defendant-Appellant. ) Judge, presiding.

JUSTICE PUCINSKI delivered the judgment of the court, with opinion. Justices Hyman and Mason concurred in the judgment and opinion.

OPINION

¶1 Following a bench trial, defendant Brian Crawford was found guilty of stalking (720

ILCS 5/12-7.3(a)(1) (West 2014)) and cyberstalking (id. § 12-7.5(a)(2)). The trial court merged

the counts and sentenced defendant on the cyberstalking count to two years in prison. On appeal,

defendant contends we should vacate his conviction because the cyberstalking statute under

which he was convicted is facially unconstitutional. He argues that subsection (a) of the statute

(1) violates due process because it allows a felony conviction for the mere negligent infliction of No. 1-16-0184

emotional distress and (2) violates the first amendment because it is an overbroad prohibition on

speech. We affirm.

¶2 I. BACKGROUND

¶3 Defendant was initially charged with one count of attempted first degree murder, two

counts of stalking, and four counts of cyberstalking. The State proceeded at trial on single counts

of attempted first degree murder, stalking, and cyberstalking.

¶4 The State charged defendant with stalking based on the allegation that he made several

phone calls and text messages threatening to kill the victim and that he knew or should have

known that his course of conduct would cause a reasonable person to fear for his or her safety. It

charged defendant with cyberstalking based on the allegation that he sent the victim several

threatening text messages saying he was going to kill her and that he knew or should have known

that this course of conduct would cause a reasonable person to suffer emotional distress.

¶5 At trial, Iceiss Sieler testified that, on March 25, 2015, she had an “off and on”

relationship with defendant for over 18 years and had two children with him. Defendant stayed at

her apartment in Matteson, Illinois, about five to six times per week. She was not in a long-term

relationship with him because she was pursuing a relationship with her boyfriend, Jonathan. 1

Sieler did not ask defendant to leave her home because he did not have anywhere else to go and

he was helping support their children.

¶6 On March 25, 2015, Sieler first saw defendant at his hotel room, where they had a sexual

relationship and he gave her rent money. They left the hotel to attend a parent-teacher conference

at their son’s school, after which Sieler dropped defendant off at his mother’s house in Chicago.

Sieler told defendant she would pick him up that evening. Sieler returned to her house, and at

1 Jonathan’s full name is not contained in the record.

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around 8:30 p.m., she left to meet Jonathan in Chicago. When Sieler was with Jonathan,

defendant called her, but she did not answer because she was having a good time and did not

want to be bothered.

¶7 Defendant sent Sieler several text messages that night, and she read them in court. At

2:36 a.m., defendant’s text messages stated: “U GONE DIE,” “I WILL F*** MURDER U” and

“Dont give a f*** who u tell.” At 2:46 a.m., defendant’s text message stated: “GET READY TO

MEET YOUR MAKER. . . I know how much u love that song (take me to the king) lets make it

a reality” and, at 2:47 a.m., he stated, “Join YO MFN MOMMA N YO COUSIN B***.” At 2:54

a.m., defendant’s text messages stated: “Its not a matter of ‘if’ i catch u but ‘when’ and when i

do, uts gone be ugly and im already prepared to go *** jail for doing it.”

¶8 Sieler testified that defendant’s text messages did “[n]ot really” upset her and she was not

scared. When Sieler was driving home to Matteson that night, she stopped a police officer and

asked him to escort her home because she thought defendant was at her home and she did not

“feel like being bothered” with him. She testified she was “highly intoxicated” and wanted

defendant out of her house so Jonathan could come over. When Sieler was talking to the officer,

defendant called her, and she put the call on speakerphone. The officer followed Sieler home.

When Sieler arrived home, she asked her son, who was lying on the couch, if he was okay and

told the officer that defendant’s jacket was there. Defendant walked out of the kitchen, which

was about 20 feet away, with a knife in his hands and stood there. Sieler testified that she

physically fought with defendant “pretty often” and defendant had previously threatened to kill

her. She did not take the previous threats seriously.

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¶9 Matteson police officer Murray testified that, on March 26, 2015, he was on patrol when

Sieler got his attention and told him she needed help. 2 She was crying and upset and told him she

was scared to go home because her ex-boyfriend had sent her threatening text messages. When

Murray was talking with Sieler, defendant called her, and she put the telephone call on

speakerphone. Murray heard defendant say to Sieler two times “I will kill you.” Sieler asked

defendant why he wanted to kill her, and he repeated, “I will kill you,” and ended the telephone

call. Sieler asked Murray to escort her home because she was concerned defendant was there.

Murray called Matteson police sergeant Ken Arvin for backup, and they followed Sieler home.

¶ 10 Sieler fumbled with her keys and was shaking when she opened her apartment door.

There were two children sleeping on couches in the living room. Sieler asked one of them if

everything was okay and told Murray that defendant’s jacket was on the chair. Defendant

jumped out from around the wall in the kitchen and growled. He was holding a knife in his hands

and was bending forward at his waist with his arms extended out in front of him. Murray pointed

his gun at defendant and ordered him to drop the knife several times. Defendant eventually

dropped the knife and surrendered. When Murray was placing defendant into custody, defendant

stated that they “could not keep him locked up forever” and he “would get to her and it would

not end well for her.”

¶ 11 Matteson police officer Rankin testified that, on March 26, 2015, when he was processing

defendant at the police station, defendant stated “I would take care of her.” 3 Rankin told

defendant that he should not threaten his girlfriend because he would have to document it.

2 Officer Murray’s first name is not included in the record. 3 Officer Rankin’s first name is not included in the record.

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Defendant told him it was okay, “it was already in the text messages,” and the “police cannot

stop things from happening.”

¶ 12 Matteson police sergeant Ken Arvin testified that, on March 26, 2015, he entered Sieler’s

apartment with Sieler and Murray. Later that day when defendant was in lockup, defendant told

Arvin that he was sorry for what had happened. Arvin asked him, “Do you have any idea how

close you came to getting shot?” Defendant apologized and told Arvin he thought “it was [Sieler]

and her boyfriend and did not realize that the police were in the apartment.” Matteson police

detective Sean White testified that, on March 26, 2015, at 3:45 p.m., he spoke with defendant at

the police station in the presence of an assistant state’s attorney. He identified the videotaped

statement that Sieler made, and the State played portions of the video for purposes of impeaching

certain parts of Sieler’s testimony.

¶ 13 The court granted defendant’s motion for a directed verdict with respect to the attempted

first degree murder count. Following argument, the court found defendant guilty of stalking and

cyberstalking. The court subsequently denied defendant’s motion for a new trial, merged the

stalking count into the cyberstalking count, and sentenced defendant to two years in prison.

¶ 14 II. ANALYSIS

¶ 15 Defendant contends that, because subsection (a) of the cyberstalking statute under which

he was convicted allows a felony conviction for the mere negligent infliction of emotion distress,

it sweeps in innocent conduct and therefore violates due process. Defendant also contends that

subsection (a) violates the first amendment because it is an overbroad prohibition on speech.

After defendant filed his opening brief and before the State filed its initial response brief, our

supreme court filed People v. Relerford,

, which addressed the constitutionality

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of subsection (a) of the stalking and cyberstalking statutes. We allowed the parties to file

supplemental briefs.

¶ 16 Initially, we note that the trial court merged the stalking count into the cyberstalking

count and sentenced defendant only for cyberstalking. In defendant’s opening brief, he argues we

should vacate his convictions for cyberstalking and stalking. However, in defendant’s

supplemental brief, he withdrew his argument regarding the stalking count and acknowledged

that, because the trial court did not impose sentence on the stalking count, we do not have

jurisdiction to decide the validity of defendant’s unsentenced guilty finding on the stalking count.

See id. ¶¶ 74-75.

¶ 17 We also note that, although defendant did not raise his constitutional claims in the trial

court, a party may raise a challenge to the constitutionality of a statute at any time. People v.

Bryant,

(1989). Before we address Relerford and defendant’s claims, we first

discuss the relevant statutory provision in the cyberstalking statute under which defendant was

convicted.

¶ 18 A. Cyberstalking Statute

¶ 19 The cyberstalking statute, under which defendant was convicted, stated, in relevant part:

“(a) A person commits cyberstalking when he or she engages in a course of

conduct using electronic communication directed at a specific person, and he or she

knows or should know that would cause a reasonable person to:

(1) fear for his or her safety or the safety of a third person; or

(2) suffer other emotional distress.

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(a-3) A person commits cyberstalking when he or she, knowingly and without

lawful justification, on at least 2 separate occasions, harasses another person through the

use of electronic communication and:

(1) at any time transmits a threat of immediate or future bodily harm,

sexual assault, confinement, or restraint and the threat is directed towards that

person or a family member of that person; or

(2) places that person or a family member of that person in reasonable

apprehension of immediate or future bodily harm, sexual assault, confinement, or

restraint; or

(3) at any time knowingly solicits the commission of an act by any person

which would be a violation of this Code directed towards that person or a family

member of that person.” 720 ILCS 5/12-7.5(a), (a-3) (West 2014).

Before Relerford, the statute defined “course of conduct” as

“2 or more acts, including but not limited to acts in which a defendant directly, indirectly,

or through third parties, by any action, method, device, or means follows, monitors,

observes, surveils, threatens, or communicates to or about, a person, engages in other

non-consensual contact, or interferes with or damages a person’s property or pet. The

incarceration in a penal institution of a person who commits the course of conduct is not a

bar to prosecution under this Section.” 720 ILCS 5/12-7.5(c)(1) (West 2014).

The statute defined “non-consensual contact” as

“any contact with the victim that is initiated or continued without the victim’s consent,

including but not limited to being in the physical presence of the victim; appearing within

the sight of the victim; approaching or confronting the victim in a public place or on

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private property; appearing at the workplace or residence of the victim; entering onto or

remaining on property owned, leased, or occupied by the victim; or placing an object on,

or delivering an object to, property owned, leased, or occupied by the victim.” 720 ILCS

5/12-7.5(c)(5) (West 2014).

The statute defined “emotional distress” as “significant mental suffering, anxiety or alarm.” 720

ILCS 5/12-7.5(c)(3) (West 2014).

¶ 20 Here, defendant was convicted of violating subsection (a)(2) of the above cyberstalking

statute. Subsection (a) does not include a mental state for the “course of conduct” element, and

the State asserts that we may construe subsection (a) of the statute to require “knowingly” as the

mental state for the course of conduct element. We agree that we may imply the mental state of

knowledge as the mental state for the course of conduct element.

¶ 21 When construing a statute, the primary objective is to ascertain and give effect to the

legislature’s intent in enacting it. Relerford,

, ¶ 30. When construing a statute, we

must, “if feasible, interpret the act in a way that preserves its constitutionality.” People v.

Anderson,

(1992). We begin with the presumption that the statute is

constitutional.

¶ 22 Under section 4-3 of the Criminal Code of 2012, if a statute “does not prescribe a

particular mental state applicable to an element of an offense (other than an offense which

involves absolute liability), any mental state defined in Sections 4-4, 4-5 or 4-6 is applicable.”

720 ILCS 5/4-3(b) (West 2014); see In re S.M.,

, 626 (2004). Sections 4-4,

4-5, and 4-6 include, respectively, definitions for “Intent,” “Knowledge,” and “Recklessness.”

720 ILCS 5/4-4, 4-5, 4-6 (West 2014); Anderson,

. Section 4-9 of the Criminal

Code of 2012, the section governing absolute liability, states as follows:

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“A person may be guilty of an offense without having, as to each element thereof,

one of the mental states described in Sections 4-4 through 4-7 if the offense is a

misdemeanor ***, or the statute defining the offense clearly indicates a legislative

purpose to impose absolute liability for the conduct described.” 720 ILCS 5/4-9 (West

2014).

Here, cyberstalking is a class 4 felony, subject to a sentencing range of one to three years in

prison. 720 ILCS 5/12-7.5(b) (West 2014); 730 ILCS 5/5-4.5-45(a) (West 2014). Therefore,

because the offense is not a misdemeanor, we will imply a mental state requirement unless the

statute defining the offense shows a clear legislative purpose to impose absolute liability. See

Anderson,

.

¶ 23 The “degree of punishment is a significant factor to consider in determining whether a

statute creates an absolute liability offense” (People v. Sevilla,

(1989)), and

under the cyberstalking statute, a defendant could be sentenced to one to three years in prison for

committing cyberstalking. Further, under subsection (a) of the cyberstalking statute, a defendant

must know or should know that his conduct would cause a reasonable person to “fear for his or

her safety or the safety of a third person” or “suffer other emotional distress.” Thus, given that

the cyberstalking statute requires that a person know or should know that his conduct would

cause a reasonable person to fear for his safety or suffer emotional distress, and given that a

defendant could face one to three years in prison, the statute does not indicate a clear legislative

purpose for imposing absolute liability for the offense. Thus, we may imply a mental state for the

course of conduct element. See Anderson,

.

¶ 24 When determining which mental element is implied, we may examine the language of

any parallel statute. Sevilla,

. The legislative history supports the conclusion

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that the cyberstalking and stalking statute are parallel statutes, as the legislature enacted the

cyberstalking statute to include electronic communications as a means by which a defendant

could commit stalking. 92d Ill. Gen. Assem., House Proceedings, May 8, 2001, at 7 (statements

of Representative Schoenberg) (the cyberstalking statute “ ‘incorporates the use of electronic

technology, like computers, hand-held personal data assistants, as vehicles through which the

crime of stalking could be committed. The penalties would remain consistent with the existing

statute for stalking.’ ”). The cyberstalking statute is “based on similar language” to subsection (a)

of the stalking statute (see Relerford,

, ¶ 63) and subsection (a) of the stalking

statute requires knowledge as a mental state for the course of conduct element (720 ILCS 5/12-

7.3(a) (West 2014)). Thus, the language of the parallel stalking statute supports our conclusion

that we may imply knowledge as the mental state for the course of conduct in the cyberstalking

statute.

¶ 25 Further, when discussing the 2010 amendments to the cyberstalking and stalking statutes,

Senator Hutchinson stated that the amendment

“redefines stalking, aggravated stalking, and cyberstalking as knowingly engaging in a

course of conduct directed at a specific person, where the defendant knows or should

know that this course of conduct would cause a reasonable person to either fear for their

safety or for the safety of a third party or to suffer emotional distress.” (Emphases added.)

96th Ill. Gen. Assem., Senate Proceedings, May 21, 2009, at 125 (statements of Senator

Hutchinson).

Thus, the legislative history supports our conclusion that the legislature intended to include

“knowingly” as the required mens rea for the course of conduct element in subsection (a) of the

cyberstalking statute, as it did for the stalking statute.

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¶ 26 Accordingly, we will imply the mental state of knowledge for the course of conduct

element in subsection (a) of the cyberstalking statute. See Anderson,

(where the

statute did not specify a culpable mental state, the court found that the State was required to

prove recklessness, knowledge, or intent); In re S.M., 347 Ill. App. 3d at 626 (where the

defendant argued that the statute violated due process because it required no culpable mental

state, the court implied the mental state of knowledge to satisfy the mens rea element).

¶ 27 B. Due Process

¶ 28 As previously discussed, we allowed the parties to file supplemental briefs after our

supreme court filed Relerford,

, which addressed the constitutionality of the

cyberstalking and stalking statutes.

¶ 29 1. Relerford and Due Process

¶ 30 In Relerford, the defendant was found guilty of violating subsections (a)(1) and (a)(2) of

the cyberstalking statute and similar provisions in the stalking statute. Id. ¶ 3. The supreme court

found that the statutes violated the first amendment but reversed this court’s reasoning that the

statutes violated due process. Id. ¶¶ 22, 63.

¶ 31 On the defendant’s appeal to the appellate court, this court found that subsections (a)(1)

and (a)(2) of the cyberstalking and stalking statutes violated due process based on the United

States Supreme Court decision in Elonis v. United States,

,

(2015).

Relerford,

, ¶ 19. In Elonis, the Supreme Court addressed the issue of which

mental state it should infer to apply in a federal statute that did not specify a required mental

state. Elonis, 575 U.S. at ___,

; Relerford,

. In its

analysis, the court stated that federal courts “have long been reluctant to infer that a negligence

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standard was intended in criminal statutes.” (Internal quotation marks omitted.) Elonis, 575 U.S.

at ___,

.

¶ 32 This court stated that, under the cyberstalking and stalking statutes, an individual’s

conduct is criminal only if the defendant “ ‘knows or should know’ ” that it would cause a

“ ‘reasonable person’ ” to suffer emotional distress. People v. Relerford,

, ¶ 26 (quoting 720 ILCS 5/12-7.3(a)(2) (West 2012)). Citing Elonis, this court therefore

concluded that subsections (a)(1) and (a)(2) of the cyberstalking statute and similar provisions in

the stalking statute did not require that the individual actually intend to inflict emotional

suffering on another and that the statutes “bypass[ ] ‘the conventional requirement for criminal

conduct—awareness of some wrongdoing’ in favor of a reasonable person standard of

criminality.” (Emphasis in original and internal quotation marks omitted.) Id. (quoting Elonis,

575 U.S. at ___,

). This court held that, under Elonis, the provisions lacked a

mental state requirement and, therefore, violated due process. Relerford,

;

Relerford,

.

¶ 33 However, our supreme court found that this court erred in vacating the defendant’s

convictions based on Elonis. Relerford,

. It noted that Elonis was not a due

process case but “merely decided a question of statutory interpretation and determined that,

where the subject criminal statute was silent as to mens rea, a mental state of intent or knowledge

would suffice.” Id. ¶ 21. The supreme court determined that this court’s conclusion that due

process does not permit criminal liability based on negligent conduct is unfounded and that

substantive due process does not categorically rule out negligence as a permissible mental state

for imposition of criminal liability. Id. ¶ 22.

¶ 34 2. Defendant’s Case and Due Process

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¶ 35 We turn to defendant’s claim that subsection (a) of the cyberstalking statute violates due

process. Defendant asserts that Relerford did not make a due process holding and only rejected

this court’s reasoning that Elonis mandated finding that subsection (a) violated due process. He

asserts that Relerford left open the question regarding “whether subsection (a) violated due

process under long-standing precedent holding that a criminal statute with a mental state so weak

as to sweep in innocent conduct cannot stand.”

¶ 36 Statutes are presumed constitutional, and the party challenging the statute has the burden

of proving that it is unconstitutional. People v. Douglas,

. Under

the legislature’s police power, it “has wide discretion to fashion penalties for criminal offenses,

but this discretion is limited by the constitutional guarantee of substantive due process, which

provides that a person may not be deprived of liberty without due process of law.” People v.

Madrigal,

(2011). A statute violates due process if “it potentially subjects

wholly innocent conduct to criminal penalty without requiring a culpable mental state beyond

mere knowledge.”

. Innocent conduct is conduct “wholly unrelated to the legislature’s

purpose in enacting the law.” People v. Hollins,

.

¶ 37 When a statute does not implicate a fundamental right, the test for determining whether

the statute complies with substantive due process is the rational basis test. Id. ¶ 15. Under this

test, a statute will be upheld if “it bears a rational relationship to a legitimate legislative purpose

and is neither arbitrary nor unreasonable.” Id. Here, defendant does not assert that this case

implicates a fundamental right and acknowledges that the rational basis test is appropriate, as he

states “[t]he new provisions are thus not a ‘rational way of addressing the problem’ of stalking.”

We review de novo a challenge to the constitutionality of a statute because it presents a question

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of law. Relerford,

. We conclude that subsection (a) of the cyberstalking

statute under which defendant was convicted does not violate due process.

¶ 38 In Relerford, the supreme court determined that this court’s conclusion that due process

does not permit criminal liability based on negligent conduct was unfounded and that substantive

due process does not categorically rule out negligence as a permissible mental state for the

imposition of criminal liability. Id. ¶ 22. Thus, the “diluted” or “weak” mental state, as defendant

asserts, in subsection (a) is not a basis to invalidate the statute for violating due process.

¶ 39 Further, we disagree with defendant that subsection (a) sweeps in innocent conduct. We

must give statutory language “its plain and ordinary meaning,” and “words and phrases should

not be construed in isolation, but must be interpreted in light of other relevant provisions of the

statute.” Poullette v. Silverstein,

(2002). Here, when giving the

plain and ordinary meaning to the words in the statute and interpreting the words and phrases as

a whole, subsection (a) does not criminalize innocent conduct.

¶ 40 Under subsection (a), as previously discussed, we may imply the mental state of

knowledge for the course of conduct element. Thus, a defendant’s conduct is considered criminal

only if he knowingly engages in two or more nonconsensual acts as defined under the course of

conduct definition. See Relerford,

(under the terms of the amended

statute, a defendant must engage in a course of conduct of two or more nonconsensual acts).

Further, to be convicted under subsection (a), the State must also prove that the acts were

directed at a specific person and that the defendant knew or should have known that the conduct

would cause a reasonable person to suffer significant mental suffering, anxiety, or alarm.

¶ 41 In addition, defendant was convicted under the “threat” provision in subsection (a), as the

State alleged that he engaged in a course of conduct using electronic communication directed at

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Sieler by sending her several threatening text messages saying he was going to kill her. The

Merriam-Webster’s dictionary defines “threaten” as “to utter threats against.” Merriam-Webster

Online Dictionary, https://www.merriam-webster.com/dictionary/threaten (last visited June 6,

2019) [https://perma.cc/KEM3-RRC9]. It defines “threat” as “an expression of intention to inflict

evil, injury, or damage.” Merriam-Webster Online Dictionary, https://www.merriam-

webster.com/dictionary/threat (last visited June 6, 2019) [https://perma.cc/FZY2-WE6N].

¶ 42 We cannot find that the statute, which criminalizes knowingly engaging in a course of

conduct of two or more threats—expressing an intent to inflict evil, injury, or damage—when he

or she knows his conduct would cause a reasonable person to suffers significant mental

suffering, involves any innocent conduct. Rather, it can be interpreted to punish only unlawful

conduct. See People v. Bailey,

(1995) (where the stalking statute at issue

did not contain the language “ ‘without lawful authority,’ ” our supreme court interpreted the

statute “as proscribing only conduct performed ‘without lawful authority’ ” and concluded that it

did not believe the conduct proscribed in the statute involved any “innocent conduct”); Douglas,

(the court concluded that the statute that provides a

defendant who “ ‘follows, monitors, observes, *** threatens, ***’ must do so in a nonconsensual

manner” can be interpreted “to punish only unlawful conduct, not consensual, innocent

contact”).

¶ 43 Moreover, we find that the prohibition against two or more threats directed at a specific

person using electronic communications in subsection (a) is rationally related to the legislature’s

intent in enacting the amended cyberstalking and stalking statutes.

¶ 44 As previously discussed, the legislative history shows that the legislature enacted the

cyberstalking statute to include electronic communications as a means through which a

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defendant could commit stalking. 92d Ill. Gen. Assem., House Proceedings, May 8, 2001, at 7

(statements of Representative Schoenberg). Before the Senate voted on amending the stalking

and cyberstalking statutes in 2010, Senator Hutchinson stated that the amendment updated the

cyberstalking law “[s]o it encompasses all technologies that stalkers use to track and harass their

victims.” 96th Ill. Gen. Assem., Senate Proceedings, May 21, 2009, at 125 (statements of Senator

Hutchinson).

¶ 45 When discussing the amendments to the stalking, aggravated stalking, and cyberstalking

statutes, Senator Hutchinson stated: “A recent U.S. Department of Justice study said that

seventy-six percent of female homicide victims were stalked first, prior to their death. It’s

terrifying and it’s something that we need to do all we can to protect our victims from.” 96th Ill.

Gen. Assem., Senate Proceedings, May 21, 2009, at 125 (statements of Senator Hutchinson); see

Douglas,

. After citing this testimony, the Fifth District in

Douglas concluded that the legislature’s goal in enacting the legislation “was not to criminalize

any innocent contact, but to protect victims of domestic abuse.” Douglas,

. Further, the Third District noted that the legislature’s intent in enacting the

stalking statute “was to prevent violent attacks by prohibiting conduct that may precede them”

and “to avert the terror, intimidation, and justifiable apprehension caused by the harassing

conduct itself.” People v. Holt,

(1995). And, this court has stated

that our supreme court has noted that the legislature’s intent in enacting the stalking statute, was

“ ‘to prevent violent attacks by allowing the police to act before the victim was actually injured

and to prevent the terror produced by harassing actions.’ ” People v. Sucic,

(2010) (quoting Bailey,

).

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¶ 46 From our review of the legislative history, we conclude that subsection (a) is rationally

related to the legislature’s goal of protecting victims from violent attacks that occur after the

prohibited acts, as here where defendant sent Sieler several threatening text messages, stating he

was going to kill her, and subsequently jumped out of the kitchen with a knife in his hand when

she arrived home that night.

¶ 47 Accordingly, based on the foregoing, we conclude that subsection (a) does not

criminalize innocent conduct or violate due process.

¶ 48 C. First Amendment

Defendant contends that subsection (a) of the cyberstalking statute violates the first amendment

because it is an overbroad prohibition on speech.

¶ 49 1. Relerford and the First Amendment

¶ 50 In Relerford, the supreme court found that the provisions in subsection (a) of the stalking

and cyberstalking statutes that made it “criminal to negligently ‘communicate[ ] to or about’ a

person, where the speaker knows or should know the communication would cause a reasonable

person to suffer emotional distress” violated the first amendment because they were overbroad.

Relerford,

.

¶ 51 In reaching this conclusion, the court found that the true threats exception did not apply,

noting that the State offered “no cogent argument as to how a communication to or about a

person that negligently would cause a reasonable person to suffer emotional distress fits into the

established jurisprudence on true threats” and did not “explain how such a communication,

without more, constitutes a ‘serious expression of an intent to commit an act of unlawful

violence.’ ” (Emphases added.) Id. ¶ 38. The supreme court also noted that it was “unclear

whether the true threat exemption *** would apply to a statement made with innocent intent but

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which negligently conveys a message that a reasonable person would perceive to be threatening.”

Id. The court cited conflicting precedent regarding the standard to apply to the true threat

exception: whether speech is unprotected only if the speaker subjectively intended the speech as

a threat or whether an objective standard applies in which the speaker did not intend to convey a

threat but the statements may be understood to do so. Id.

¶ 52 The court however did not determine which standard applied because it concluded that

subsection (a) specifically included the “making of threats as an independent basis of a course of

conduct” and “[t]he prohibition against distressing communications to or about a person stands

separate and apart from the proscription against threats.” (Emphases added.) Id. ¶ 39. It noted

that, “[i]f distressing communications to or about a person are construed to refer to ‘true threats,’

***, then the language proscribing threats would be superfluous” and “[s]uch a construction

must be rejected because this court presumes that each part of a statute has meaning.” Id.

Relerford also concluded that the “communicates to or about” provision did not fall within the

“speech *** integral to criminal conduct” category of unprotected speech. Id. ¶¶ 41-48.

¶ 53 The supreme court then concluded that the “communicates to or about” provisions were

unconstitutional because they were overbroad in violation of the first amendment. Id. ¶ 63. The

court found that the provisions in subsection (a) were severable and struck the phrase

“communicates to or about” from subsection (a) in each statute. Id. ¶ 65. Because the phrase was

severable, the court addressed whether the defendant’s convictions could be sustained based on

other conduct prohibited by the stalking and cyberstalking statutes, including the threat

provision. Id.

¶ 54 2. Defendant’s Case and the First Amendment

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¶ 55 As previously noted, the supreme court issued Relerford before defendant filed his

opening brief. In defendant’s initial brief, he argues that the “communicates to or about”

provision was overbroad. In defendant’s supplemental brief, he argues that the threat provision in

subsection (a) is unconstitutional for the same reasons that the supreme court found the

“communicates to or about” provision was unconstitutional. He asserts that Relerford “changed

the landscape of the law” regarding the constitutionality of certain provisions in the

cyberstalking statute and that he was raising the same challenges as he raised in his initial brief

but “recharacterizes his arguments to account for the change in the law.”

¶ 56 The first amendment, which is binding on the states through the due process clause in the

fourteenth amendment, provides that Congress shall not make laws “abridging the freedom of

speech.” U.S. Const., amends. I, XIV; City of Chicago v. Pooh Bah Enterprises, Inc.,

(2006). Generally, “the first amendment prevents the government from proscribing

speech or expressive conduct because of disapproval of the ideas expressed.” Pooh Bah

Enterprises, Inc.,

.

¶ 57 Further, content-based laws targeting speech based on its communicative content are

presumed invalid. Relerford,

. However, the supreme court has recognized

certain categories of expression, including “true threats” and “speech integral to criminal

conduct,” that do not fall within the protections of the first amendment. Id. ¶ 33. The United

States Supreme Court has defined true threats as threats that “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.” Virginia v. Black,

(2003). Under the true threat exception, the “speaker need not actually intend to carry out the

threat.”

. Instead, the prohibition on true threats protects individuals from “fear of

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violence,” “the disruption that fear engenders,” and “the possibility that the threatened violence

will occur.” (Internal quotation marks omitted.)

. Further, “[i]ntimidation 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.”

¶ 58 Under the overbreadth doctrine, a statute is considered overbroad “if a substantial number

of its applications are unconstitutional, judged in relation to the statute’s plainly legitimate

sweep.” City of Chicago v. Alexander,

. Under the overbreadth

doctrine, a party may challenge a statute as facially unconstitutional, “even if that party’s

conduct would not fall within the amendment’s protection.” Relerford,

.

The purpose for allowing a challenge under the overbreadth doctrine is to avoid “the potential

chilling effect that overbroad statutes have on the exercise of protected speech.”

However, the

overbreadth doctrine is to be used sparingly. Sucic,

. “In addressing a

facial overbreadth challenge, the first task is to determine whether the statute reaches

constitutionally protected speech ***.”

¶ 59 Although the supreme court in Relerford found that the “communicates to or about”

phrase in subsection (a) did not fall within the true threat exception and concluded that it was

overbroad in violation of the first amendment, it nevertheless determined that the “threats”

provision was separate from the “communicates to or about” provision and implied that it could

form the requisite course of conduct prohibited by subsection (a). In its analysis regarding

whether the “communicates to or about” provision fit within the true threat exception, the court

stated that “[t]he prohibition against distressing communications to or about a person stands

separate and apart from the proscription against threats” and, “even assuming that statements

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which negligently convey a threat are not protected, a course of conduct based on such

statements could be prosecuted under the threat portion of subsection (a).” Relerford,

. It then stated that, “[i]f distressing communications to or about a person are

construed to refer to ‘true threats,’ *** then the language proscribing threats would be

superfluous.”

¶ 60 Then, after the court concluded that the “communicates to or about” phrase was invalid

because it was overbroad, it expressly addressed whether the defendant’s conduct could be

sustained on other conduct prohibited by the statute, including the threat provision. Id. ¶¶ 66, 69

(finding the evidence did not show that the defendant’s conduct was threatening, stating, “there

is no evidence that any of the calls or e-mails were threatening, they cannot be considered as part

of a course of conduct under subsection (a),” “[n]one of those posts included any language that

can be construed as a threat specifically directed at her, and counts III and IV alleged only that

defendant had threatened [the victim’s] coworkers, workplace, and employer,” and “[a]s a whole,

the Facebook posts are vulgar and intrusive, but they cannot be characterized as conveying a

threat against [the victim]”). Accordingly, following Relerford, we will address whether

defendant’s cyberstalking conviction can be sustained based on the threat provision. See id. ¶ 39;

People v. Khan,

(discussing that Relerford concluded that

subsection (a)(2) “separately cover[ed] the making of true threats, which are not protected”).

¶ 61 We conclude that defendant’s conviction can be sustained under the threat portion of

subsection (a). Here, defendant was charged with cyberstalking in that he engaged in a course of

conduct using electronic communication directed at Sieler by sending her several threatening text

messages, saying he was going to kill her, and that he knew or should have known that this

course of conduct would cause a reasonable person to suffer emotional distress.

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¶ 62 The evidence shows that defendant sent Sieler text messages stating “U GONE DIE”; “I

WILL F*** MURDER U”; “Dont give a f*** who u tell”; “GET READY TO MEET YOUR

MAKER. . . I know how much u love that song (take me to the king) lets make it a reality”; “Join

YOU MFN MOMMA N YOU COUSIN B***”; and “Its not a matter of ‘if’ i catch u but ‘when’

and when i do, uts gone be ugly and im already prepared to go *** jail for doing it.” Officer

Murray testified that Sieler, who was crying and upset, stopped him when he was on patrol and

told him she was scared to go home because defendant had sent her threatening text messages.

She asked Murray to escort her home, and Murray heard defendant say to Sieler two times on the

telephone, “I will kill you.” Accordingly, unlike the Facebook posts in Relerford that did not

contain any language that could be construed as threatening, the evidence here shows that

defendant’s numerous text messages included threatening language specifically directed at Sieler

and were “serious expression[s] of an intent to commit an act of unlawful violence” on her. See

Black,

. Thus, unlike Relerford, this evidence shows that defendant’s

statements were threatening and can be characterized as conveying a true threat against Sieler,

and therefore defendant’s conduct is not protected by the first amendment, and his conviction

can be sustained based on the threat provision. See Relerford,

.

¶ 63 Defendant asserts that subsection (a) is unconstitutional because it lacks any elements of

a true threat, including that it does not require that “predicate communications express any intent

to act in the future.” However, as previously discussed, under the true threat exception, the

“speaker need not actually intend to carry out the threat.” Black,

.

¶ 64 Defendant also asserts that subsection (a) is unconstitutional because it does not even

refer to an “ ‘unlawful act of violence.’ ” We note that, following oral argument, a division in

this district issued People v. Morocho,

, and we granted defendant’s

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motion to cite this authority. In Morocho, the court concluded that subsection (a)(2) of the

stalking statute, which contains similar provisions to the cyberstalking statute at issue here, did

not fit within the true threat exception. In reaching its conclusion, the court noted that subsection

(a)(2) “clearly lacks any requirement that a person threaten ‘an act of unlawful violence’ ” and it

“fails to limit the threatened action to that of violence.”

¶ 36 (citing Black,

).

Morocho then concluded that the threat provision was an overbroad prohibition on free speech,

noting that it “reaches a vast number of circumstances that limit speech far beyond the generally

understood meaning of stalking.” Id. ¶ 41.

¶ 65 While we acknowledge the court’s decision in Morocho, defendant has not directed this

court to any binding authority to support that, if the statute does not expressly contain the

requirements of a true threat as elements of the offense, including an “unlawful act of violence,”

then the statute under which a defendant is convicted does not fall within the true threat

exception or violates the first amendment. See O’Casek v. Children’s Home & Aid Society of

Illinois,

(2008) (“the opinion of one district, division, or panel of the

appellate court is not binding on other districts, divisions, or panels”).

¶ 66 Further, defendant claims that, in Relerford, the supreme court “was able to sidestep the

question of what kind of mental state the First Amendment requires of a statute that prohibits

threats,” the “true threat exception requires a mental state of intentionality, or at least knowledge,

that the recipient will understand the communication as a threat,” and the “true threat” exception

requires a subjective intent to threaten.

¶ 67 As previously discussed, we may imply knowledge as the mens rea for the course of

conduct element. Thus, under subsection (a), a defendant must knowingly engage in a course of

conduct, i.e., engage in two or more threats, directed at a specific person, and he must know or

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should know that his conduct would cause a reasonable person to suffer other emotional distress.

A person acts with knowledge “if he is consciously aware that his conduct is practically certain

to cause the prohibited result.” People v. Goodwin,

; 720 ILCS

5/4-5 (West 2014). Thus, because the State must prove that defendant knowingly used electronic

communications to communicate two or more threats directed at a specific person, we cannot

find that subsection (a) violates the first amendment because it does not require a defendant to

have a mental state of intentionality that the recipient will understand the communication as a

threat. See Goodwin,

(stating that a statute that requires a person

knowingly convey a communication containing a threat “makes clear” that the defendant’s

“subjective intent is relevant to determine whether the State satisfied the requisite elements”).

¶ 68 To support defendant’s argument that the “true threat exception requires a mental state of

intentionality, or at least knowledge, that the recipient will understand the communication as a

threat,” he cites People v. Dye,

, People v. Wood,

, and Goodwin,

.

¶ 69 In Dye, the defendant challenged on appeal whether the State proved beyond a reasonable

doubt that his threat to a public official was a true threat within the meaning of Black. Dye,

. Citing Black,

, the court stated that a “true threat”

requires intentionality. Dye,

. It therefore concluded that the

statute under which defendant was convicted, which required knowledge, must be interpreted as

requiring intentionality, as it must be interpreted “within the confines of the first amendment.”

(Internal quotation marks omitted.)

The court concluded that the State did not prove beyond a

reasonable doubt that the defendant’s threat was a true threat under Black. Id. ¶ 12.

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¶ 70 In Wood, the defendant challenged on appeal the sufficiency of evidence with respect to

his conviction for threatening a public official, which required that the defendant knowingly and

willfully communicated the threat, and with respect to whether the State proved his

communication constituted a true threat. Wood,

. Citing Dye,

, this court stated that, “[i]n interpreting the statute for the

offense of threatening a public official, we have held that intentionality on the defendant’s part is

required.” Wood,

. The court concluded that the defendant’s

statements were not true threats under Black. Id. ¶ 14.

¶ 71 Similarly, in Goodwin, this court interpreted the same statute at issue in Wood and Dye,

stating that “ ‘we have held that intentionality on the defendant’s part is required.’ ” Goodwin,

(quoting Wood,

). This court

then addressed the sufficiency of evidence regarding whether the State proved beyond a

reasonable doubt that the defendant intended his communication to the victim to be a threat that a

reasonable listener would understand to be threatening. Id. ¶ 42.

¶ 72 In addressing the sufficiency of the evidence, the courts in Dye, Wood, and Goodwin

interpreted the statute under which the defendants were convicted (720 ILCS 5/12-9 (West

2014)) to require intentionality to qualify as a true threat under Black. Goodwin,

; Wood,

; Dye,

. However, the courts did not find that the statute violated the first amendment because it did

not have intent as the required mens rea. These cases also did not make the finding that the

statute at issue was unconstitutional because it did not expressly provide that the threat element

requires subjective intent to be considered a true threat. We are therefore unpersuaded by

defendant’s reliance on Dye, Wood, and Goodwin to support that subsection (a) violates the first

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amendment because it does not contain a mental state of “intentionality, or at least knowledge,

that the recipient will understand the communication as a threat” or because it does not provide

that a defendant must have a subjective intent to threaten.

¶ 73 We recognize the conflicting precedent regarding whether an objective or subjective

intent standard applies when determining whether a defendant’s statement is a “true threat.” See

Relerford,

; United States v. Parr,

(7th Cir. 2008)

(discussing the conflicting precedent in the federal circuits regarding whether the objective or

subjective standard applied, stating that the objective “reasonable person” test asks “whether a

reasonable speaker would understand that his statement would be interpreted as a threat” or

“whether a reasonable listener would interpret the statement as a threat,” and, under the

subjective test, a statement qualifies as a true threat only if the speaker subjectively intended it as

a threat); Goodwin,

(concluding it would determine whether the

State proved that the defendant “intended his communication to [the victim] to be a threat that a

reasonable listener would understand to be threatening”); People v. Bona,

(discussing the conflicting precedent in the federal courts regarding whether a true

threat required “ ‘proof that the speaker subjectively intended the speech as a threat’ ” or whether

the “reasonable person” standard was sufficient); People v. Diomedes,

.

¶ 74 We need not determine which standard the State must prove for defendant’s statements to

be considered true threats not protected because we find that defendant’s statements to Sieler

were true threats under both the objective and subjective standards.

¶ 75 As previously discussed, the evidence showed that defendant sent Sieler several text

messages telling her she was “GONE DIE,” “I WILL F*** MURDER U,” and “Its not a matter

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of ‘if’ i catch u but ‘when’ and when i do, uts gone be ugly and im already prepared to go ***

jail for doing it.” Officer Murray testified that Sieler, who was crying and upset, got his attention

and told him she needed help and was scared to go home because her ex-boyfriend had sent her

threatening text messages, thus supporting that Sieler believed defendant’s statements were

threats. Murray heard defendant tell Sieler over the telephone that “I will kill you.” Before Sieler

entered her home, she fumbled her keys and was shaking. When Sieler walked inside, defendant

jumped out from the kitchen with a knife in his hands, growled, and stood in a wrestler’s stance,

providing support that defendant intended his statements to be threats and he would act in

furtherance of them. Defendant told Officer Rankin at the police station that he “would take care

of her” and the “police cannot stop things from happening,” and he told Sergeant Arvin that he

did not know the police were in the apartment but thought “it was [Sieler] and her boyfriend,”

which provides further support that he intended his statements as threats.

¶ 76 Based on this evidence, we find that, under either the subjective or objective standard,

defendant’s statements are true threats and the evidence supports that he meant to communicate a

“serious expression of an intent to commit an act of unlawful violence” at Sieler. See Black,

.

¶ 77 Accordingly, based on the foregoing, we are unpersuaded by defendant’s arguments that

the “threat” provision does not fit within the true threat exception not protected by the first

amendment, and defendant’s conduct can be considered true threats not protected. See Relerford,

(analyzing whether the defendant’s conduct could be sustained

based on “other conduct prohibited” by the statute, including whether his conduct could be

“construed as a threat specifically directed at” the victim). Subsection (a) therefore does not

violate the first amendment.

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¶ 78 III. CONCLUSION

¶ 79 In sum, subsection (a) of the cyberstalking statute does not violate the first amendment or

due process.

¶ 80 For the reasons explained above, we affirm defendant’s conviction.

¶ 81 Affirmed.

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No. 1-16-0184

Cite as: People v. Crawford,

Decision Under Review: Appeal from the Circuit Court of Cook County, No. 15-CR- 6760; the Hon. Frank Zelezinski, Judge, presiding.

Attorneys James E. Chadd, State Appellate Defender, of Chicago (Patricia for Mysza, Deputy Defender, and Michael Gomez, Assistant Appellant: Appellate Defender, of counsel), for defendant-appellant.

Attorneys Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. for Spellberg, Annette Collins, Veronica Calderon Malavia, Appellee: Assistant State’s Attorneys, of counsel), for the People.

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