THE PEOPLE OF THE STATE OF ILLINOIS, Plаintiff-Appellee, v. MARSHALL ASHLEY, Defendant-Appellant.
NO. 4-15-0293
IN THE APPELLATE COURT OF ILLINOIS FOURTH DISTRICT
July 11, 2018
2018 IL App (4th) 150293-U
Honorable Scott D. Drazewski, Judge Presiding.
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). Appeal from Circuit Court of McLean County No. 14CF1271
Justices Knecht and DeArmond concurred in the judgment.
ORDER
¶ 1 Held: The appellate court affirmed, concluding the stalking statute (
¶ 2 In October 2014, the State charged defendant, Marshall Ashley, with two felony counts of stalking, alleging he knowingly engaged in a course of conduct directed at Keisha Tinch, which defendant knew or should have known would cause a reasonable person (1) to fear for his or her safety (count I) (
I. BACKGROUND
¶ 4 ¶ 5 In October 2014, the State charged defendant with two felony counts of stalking, alleging he knowingly engaged in a course of conduct directed at Tinch, which defendant knew or should have knоwn would cause a reasonable person (1) to fear for his or her safety (count I) (
¶ 6 In October 2014, defendant and Tinch had been dating for approximately two years and had a daughter together. Tinch and defendant lived together in an apartment on Dustin Avenue in Normal, Illinois. Karen Miller, Tinch‘s mother, testified she and several relatives and children were having dinner at Tinch‘s apartment on October 21, 2014. At some point that evening, Tinch received a phone call from defendant. Miller testified she heard Tinch arguing on the phone and went into the kitchen. Tinch put the telephone on speaker, and Miller heard defendant threaten to come over and kill Tinch with a “banger,” and he did not care who was at Tinch‘s apartment. Tinch testified defendant told her that if she had a man at her apartment, he was going to come and kill her with a “banger,” meaning a gun. After receiving this phone call, Tinch, Miller, and the other relatives all went to Miller‘s house.
¶ 7 On the way to Miller‘s house, Tinch called the police and gave them both her address and Miller‘s address. Nicholas Mishevich, an officer with the Normal Police
¶ 8 Officer Jonathan McCauley testified he was on patrol on October 21, 2014, and was dispatched to the area near Tinch‘s apartment to look for defendant. McCauley pulled over a vehicle with defendant in the passenger seat and took defendant into custody. McCauley interviewed defendant at the police station and took photographs of the text messages exchanged with Tinch on defendant‘s phone.
¶ 9 Tinch identified the photographs of the text messages the police took from both her telephone and defendant‘s telеphone. Defendant sent Tinch the following relevant text messages:
2:24 p.m.: “you finna make me come look for you‘re a**”
3:04 p.m.: “I love you too much to see u dead dummy. But [I] guarantee u this. I can make u suffer. If [I] want to.”
3:29 p.m.: “You rite start to think more before u talk that s**t will get u hurt or killed talking dumb put your mouth bay”
3:30 p.m.: “Out”
7:05 p.m.: “So y haven‘t you text or call me but it[‘]s cool [K]eshia [I] guess we don[‘]t have to talk like that every time”
7:12 p.m.: “Just saying b***h u don[‘]t check up on me you don‘t know how [I‘]m living”
7:12 p.m.: “Where the f**k are u”
7:12 p.m.: “Cause [I] rode past in seen lights on there”
7:23 p.m.: “Answer my f**king question why is there lights on at the house”
7:26 p.m.: “You got my blood boiling”
7:45 p.m.: “Y u aint answering the phone scary a** b***h”
7:54 p.m.: “So u ain‘t gon pick up huh”
7:57 p.m.: “Rite you not picking up cause uk im f**king rite b***h [I] swear [I] tried to trust your thot a** w[h]en [I] go over there any tim[e] said u had a n***a over there imma go in on you‘rе a**”
8:23 p.m.: “I swear b***h if a n***a there its g[o]ing to be one”
8:24 p.m.: “U them f**ked up”
8:31 p.m.: “I hope whoever you got it when I got guns”
8:57 p.m.: “So u called the law”
Defendant also sent Tinch a photograph of a handgun. The photographs taken of the messages on defendant‘s telephone were consistent with those taken from Tinch‘s telephone. However, defendant‘s phone did not include the message sent at 8:31 p.m. referencing guns. Tinch testified the text messages “scared” her and the message sent shortly after 7 p.m. “terrified” Tinch because she “knew right then and there that [defendant] was going to come after [her] even more.”
¶ 10 Defendant testified he and Tinch livеd together in October 2014 and had been arguing a lot. At some point, Tinch told defendant she was getting evicted from her apartment.
¶ 11 Following closing arguments, the trial court found defendant guilty of count II, finding that defendant‘s text messages and phone calls would cause a reasonable person to suffer emotional distress. In April 2015, the court sentenced defendant to a term of one year and six months’ imprisonment, followed by a four-year term of mandatory supervised release.
¶ 12 This appeal followed.
II. ANALYSIS
¶ 14 On appeal, defendant argues subsection (a) of the stalking statute violates state and federal constitutional guarantees of (1) due process, because it lacks a mens rea requirement and is unduly vague; and (2) free speech, bеcause it overbroadly criminalizes a substantial amount of protected speech. On November 30, 2017, the supreme court filed an opinion addressing the constitutionality of the stalking statute in People v. Relerford, 2017 IL 121094. That same date, this court ordered the parties to file supplemental briefs in light of Relerford. We first discuss the relevant statutory provision before turning to defendant‘s claims.
A. Pre-Relerford Stalking Statute
¶ 16 Prior to the supreme court‘s decision in Relerford, the stalking statute provided, in pertinent part, as follows:
“(a) A person commits stalking when he or she knowingly engages in a course of conduct directed at a specific person, and he
or she knows or should know that this course of conduct 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.”
720 ILCS 5/12-7.3(a)(1) , (2) (West 2012).
The statute further defines “course of conduct” as follows:
” ‘Course of conduct’ means 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. A course of conduct may include contact via electronic communications.”
720 ILCS 5/12-7.3(c)(1) (West 2012).
¶ 17 Although not at issue in the present case, the Illinois Supreme Court‘s decision in Relerford addresses the cyberstalking statute. Therefore, we point out the cyberstalking provisions are substantially similar to the stalking statute provisions, with the additional requirement that the defendant used electronic communication in committing the offense. See
B. The Present Case
¶ 19 As noted above, defendant challenges the constitutionality of the stalking statute, arguing it violates (1) due process because it lacks a mens rea requirement and is unduly vague,
1. Standard of Review
¶ 21 Statutes are presumed constitutional, and the party raising a challenge to the constitutionality of a statute bears the burden of proving the statute‘s unconstitutionality. People v. Hollins, 2012 IL 112754, ¶ 13, 971 N.E.2d 504. It is our duty to construe the statute in a manner that upholds the statute‘s validity and constitutionality if reasonably possible. Id. A challenge to the constitutionality of a statute presents a question of law, which we review de novo. Relerford, 2017 IL 121094, ¶ 30.
2. Relerford Overview
¶ 23 In Relerford, the defendant was charged with two counts of stalking (
¶ 24 The defendant appealed, and the appellate court vacated all of his convictions, finding the terms of subsection (a) of the stalking and cyberstalking statutes violated due process. Id. ¶ 15. “In the appellate court‘s view, the United States Supreme Court‘s decision in Elonis v. United States, 575 U.S. 723, 135 S. Ct. 2001 (2015), compelled invalidation of both statutes оn due process grounds because the relevant provisions lack a mental state requirement.” Id. The supreme court granted the defendant‘s petition for leave to appeal and we discuss its decision where relevant below.
3. Due Process
¶ 25 Defendant first argues subsection (a) of the stalking statute violates state and federal constitutional guarantees of due process because it lacks a mens rea requirement and is unduly vague. Defendant relies heavily on the First District Appellate Court‘s decision in Relerford, People v. Relerford, 2016 IL App (1st) 132531, 56 N.E.3d 489, and the primary case relied on by the First District Appellate Court, Elonis, 575 U.S. 723, 135 S. Ct. 2001.
¶ 26 We conclude the Illinois Supreme Court decision in Relerford precludes defendant‘s due-process argument. See Relerford, 2017 IL 121094, ¶ 22. The Illinois Supreme Court rejected the appellate court‘s holding that the stalking statute violated due process, concluding (1) Elonis decided a question of statutory interpretation and did not engage in any due process analysis; and (2) “substantive due process does not categorically rule out negligence
4. First Amendment
¶ 28 Defendant next contends subsection (a) of the stalking statute violates the first amendment guarantee of free speech because it criminalizes a substantial amount of protected speech. Defendant maintains this position in his supplemental brief, arguing he was convicted for “communications” that he knew or should have known would cause a reasonable person to suffer emotional distress. Defendant further argues the stalking statute expressly writes out the requirement of intent from the true threats exception to first amendment protection and, thus, is unconstitutional. The State asserts Relerford held the phrase “communicates to or about” was facially unconstitutional and must be stricken from the statute. However, in Relerford the supreme court went on to determine whether the defendant‘s convictions could be upheld based on other conduct prohibited by the statute. Accordingly, the State asserts defendant‘s conviction
¶ 29 The first amendment, applicable to the states through the fourteenth amendment, prohibits the enactment of laws “abridging the freedom of speech.”
” ‘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 protects 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.” (Internal quotation marks omitted.) Virginia v. Black, 538 U.S. 343, 359-60 (2003).
¶ 30 Turning back to Relerford, we now examine the supreme court‘s discussion of the defendant‘s first amendment challenge to the stalking statute. Relerford, 2017 IL 121094, ¶¶ 23-63. The supreme court found the proscription against communications to or about a person that
¶ 31 The supreme court recognized the United States Supreme Court has held that speech “qualifies as a true threat if it contains a ‘serious expression of an intent to commit an act of unlawful violence.’ ” Id. ¶ 37 (quoting Black, 538 U.S. at 359). The Relerford court went on to say the following:
“The State offers no cogent argument as to how а 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. The State does not explain how such a communication, without more, constitutes a ‘serious expression of an intent to commit an act of unlawful violence.’ Black, 538 U.S. at 359. Moreover, it is unclear whether the true threat exemption from the first amendment would apply to a statement made with innocent intent but which negligently conveys a message that a reasonable person would perceive to be threatening. Compare United States v. Cassel, 408 F.3d 622, 632-33 (9th Cir. 2005)
(interpreting the Supreme Court‘s decision in Black as indicating that speech is unprotected under the first amendment only if the speaker subjectively intended the speech as a threat), with State v. Johnston, 156 Wash. 2d 355, 127 P.3d 707, 710 (2006) (adopting an objective standard for statements that may be understood to convey a threat, even if the speaker did not so intend). The State does not attempt to reconcile this conflicting precedent.” Relerford, 2017 IL 121094, ¶ 38.
The supreme court declined to resolve that question, because the prohibited communications stood separate and аpart from the statutory prohibition on threats. Id. ¶ 39. “Therefore, even assuming that statements 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). If distressing communications to or about a person are construed to refer to ‘true threats,’ as the State‘s argument suggests, then the language proscribing threats would be superfluous.” Id. The supreme court rejected such a construction because it would render part of the stаtute superfluous. Id.
¶ 32 Relerford also rejected the State‘s argument that communications to or about a person were exempt from first amendment protection as speech integral to criminal conduct. Id. ¶ 45. The supreme court then determined the prohibition on communications to or about a person was overbroad on its face as it “embrace[d] a vast array of circumstances that limit speech far beyond the generally understood meaning of stalking.” Id. ¶ 52. The supreme court offered the following hypothetical as an example of the type of protected speech the stalking statute encroached upon:
“[S]ubsection (a) prohibits a person from attending town meetings at which he or she repeatedly complains about pollution caused by a local business owner and advocates for a boycott of the business. Such a person could be prosecuted under subsection (a) if he or she persists in complaining after being told to stop by the owner of the business and the person knows or should know that the complaints will cause the business owner to suffer emotional distress due to the economic impact of a possible boycott.” Relerford, 2017 IL 121094, ¶ 53
The supreme court found the degree of overbreadth was substantial, given the wide range of constitutionally protected speech covered by the prohibition on communications to or about a person. Id. ¶ 63. Relerford held “that the portion of subsection (a) of the stalking statute that makes 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, is facially unconstitutional.” Id.
¶ 33 Because the supreme court found the prohibition on communications to or about a person overbroad, it determined the phrase “communicates to or about” must be stricken from subsection (a) of the stalking statute. Id. ¶ 65. Because that provision was severable, the court then addressed whether the defendant‘s convictions could be sustained based on other conduct prohibited by the statutes.
¶ 34 As set forth above, the Relerford defendant‘s stalking charges were based on allegations that the defendant called and e-mailed thе victim, stood outside her place of employment, and entered her place of employment. The supreme court determined the calls and e-mails could not be considered as part of a course of conduct because there was no evidence
¶ 35 Defendant asserts his convictions were based on his communications to or about Tinch and must be reversed in light of the supreme court‘s holding in Relerford. While we follow the supreme court‘s decision that the “communicates to or about” portion of the statute is overbroad, it is clear from Relerford this does not end our inquiry. As the State argues, we must determine whether defendant‘s conviction can be sustained based on other prohibited conduct.
¶ 36 Based on Relerford, the stalking statute defines “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, surveils, [or] threatens *** a person, engages in other non-consensual contact, or interferes with or damages a person‘s property or pet. A coursе of conduct may include contact via electronic communications.”
¶ 37 The text messages sent by defendant on October 21, 2014, show he “monitored” Tinch by driving by her house and observing lights on inside. For example, one text read, “you finna make me come look for you‘re a**,” and another sеries of texts read, “Where the f**k are u[?] Cause [I] rode past in seen lights on there[.] Answer my f**king question why is there lights on at the house[?]” Moreover, defendant was stopped and taken into custody near Tinch‘s home. Defendant argues his text messages were mere “communications,” pointing to messages such as “I love you *** betta not hear anything that will make me mad,” and “You got my blood boiling” as examples. However, the text about defendant‘s blood boiling was sent shortly after he sent the text messages indicating he drove by Tinch‘s house and saw lights on. Defendant also ignores other tеxt messages, such as “But [I] guarantee u this. I can make u suffer,” “I swear b***h if a n***a there its g[o]ing to be one,” and “I hope whoever you got it when I got guns.” Tinch testified defendant called her and told her he was going to come and kill her with a “banger,” meaning a gun. Additionally, Miller testified she heard defendant threaten to come over and kill Tinch with a “banger,” and he did not care who was at her apartment.
¶ 38 Defendant argues that, where the statute “contain[s] no requirement that the predicate communications express any intent to act in the future, or even refer to an ‘unlawful act of violence’ for a felony conviction, the statute lacks any elements of a required true threat.” Defendant asserts the State cannot avoid the impact of Relerford by relabeling “communications” as “threats” when it prosecutes a defendant under a statute that lacks the
¶ 39 Initially, we find the State has not relabeled “communications” as “threats” in order to avoid the consequences of Relerford. Defendant was charged with stalking in that he drove by Tinch‘s residence, sent her threatening text messages, made threatening phone calls, and went to her residence. The State has consistently argued that defendant‘s threatening texts and phone calls were “true threats” exempt from first amendment protection. Relatedly, we disagree that Relerford rejected the same “true threats” argument the State raises before this court. In Relerford, none of the phone calls or emails were threatening and, therefore, could not be considered as рart of a course of conduct. Here, there is evidence defendant‘s text messages and phone calls specifically threatened Tinch, including an expression of defendant‘s intent to get a gun, come to Tinch‘s home, and kill her.
¶ 40 Here, the defendant fails to cite any authority for his argument that the statute must contain a requirement that conduct which “threatens” a person must express an intent to act in the future to commit an unlawful act of violence. Defendant also contends the statute imposed criminal liability based on a mental state of negligence thereby criminalizing statements made with an innocent intent. Defendant draws this argument from the supreme court‘s statement that, “it is unclear whether the true threat exemption from the first amendment would apply to a statement made with innocent intent but which negligently conveys a message that a reasonable person would perceive to be threatening.” Relerford, 2017 IL 121094, ¶ 38. How does one negligently threaten someone? We fail to see how a threat that meets the definition of a “true threat” could be negligently made.
¶ 42 We acknowledge the “conflicting precedent” with regard to whether a “true threat” requires a showing of the speaker‘s subjective intent to threaten or an objective stаndard for statements that are reasonably understood to convey a threat, even if the speaker did not so intend. However, in this case we need not determine which standard must be met, because under either standard defendant‘s statements to Tinch were “true threats.” Defendant‘s rapid, angry text messages provide some context for his mental state, and the other evidence in the record supports the inference that he subjectively intended to express an intent to commit an act of unlawful violence when he threatened to get a gun and gо to Tinch‘s house to kill her. Those statements also objectively convey a threat, which both a reasonable speaker and a reasonable listener would understand.
¶ 43 To summarize, we adhere to the supreme court‘s decision in Relerford that the “communicates to or about” portion of the stalking statute is overbroad. As that does not end the inquiry, we determined defendant‘s conviction could be sustained based on his conduct that was otherwise prohibited by the statute. Accordingly, we affirm the judgment of the trial court.
III. CONCLUSION
¶ 46 Affirmed.