JUSTICE ZENOFF delivered the judgment of the court, with opinion.
Appeal from the Circuit Court of Du Page County. No. 13-CF-647 Honorable George J. Bakalis, Judge, Presiding. JUSTICE ZENOFF delivered the judgment of the court, with opinion.
Justices McLaren and Hutchinson concurred in the judgment and opinion.
OPINION
¶ 1 Following a jury trial in the circuit court of Du Page County, defendant, Stephen S. Bona, was convicted of two counts of threatening a public official, in violation of section 12-9 of the Criminal Code of 2012 (Code) (720 ILCS 5/12-9(a) (West 2012)). Defendant appeals his conviction, challenging (1) whether the statute is constitutional, (2) the sufficiency of the evidence presented against him, (3) the admissibility of certain evidence, and (4) allegedly improper comments during closing argument. We affirm.
¶ 2 I. BACKGROUND
¶ 3 At defendant's trial, Kathleen Murphy, a legislative assistant to State Representative Jeanne Ives, testified that on the morning of March 22, 2013, she was listening to voicemails that came into Ives's office over the previous two days. One of the calls was from a man who "sounded like somebody was reading from a script." Murphy testified that the man compared himself and his partner and the good things they had done to Representative Ives and her husband and how "awful" they were. Murphy stated that the man called Representative Ives the "C-word." Murphy said that she deleted the voicemail due to its offensive nature, as was her standard practice. The next voicemail in succession sounded like it was from the same person. That voicemail was preserved and played for the jury:
"Your Tea Party brethren, Sara[h] Palin, put up a map that included the names, locations, faces of Democratic candidates, and put them in the cross-hairs of a gun. Perhaps we should do the same for you. We know where you live. There is no longer an assault weapons ban. Perhaps you should think about that before you speak the next time, you stupid fucking bitch."
¶ 4 Murphy testified that she had been trained to contact the police in situations that created uncertainty or worry in her mind. She phoned the police to report the second voicemail, and then notified Representative Ives. ¶ 5 Officer Robert Krolikowski testified that he was a 23-year veteran of the Wheaton Police Department. On the morning of March 22, 2013, he responded to the call from Representative Ives's office. He spoke with Murphy, who expressed concern about the contents of the voicemail. Officer Krolikowski listened to the voicemail and made a recording of the call. He noted in his report that the previous voicemail was from a similar-sounding person and that Murphy did not characterize the first voicemail as threatening. Krolikowski later alerted his superiors about the case. He turned over the recording and the information he had gathered to the investigation division.
¶ 6 Representative Ives testified. She began her term as the state representative for the 42nd District in January 2013. On February 25, 2013, she appeared on a Catholic radio program called Marriage Monday that airs in the Chicago area. A recording of the radio interview was played for the jury. Among other topics, Representative Ives discussed the then-pending gay-marriage bill, to which she expressed her opposition:
"They are trying to redefine marriage. It's a completely disordered relationship. And when you have a disordered relationship, you don't ever get order out of that.
***
They're not just trying to redefine marriage; they're trying to redefine society. They're trying to weasel their way into acceptability so they can then start to push their agenda down into the schools because this gives them some sort of legitimacy.
***
To not have a mother and a father is really a disordered state for a child to grow up in, and it really makes that child an object of desire rather than the result of a matrimony [sic]."
Representative Ives testified that she received both positive and negative feedback about her comments. Regarding the negative feedback, she testified: "I was getting hate mail, e-mails, phone calls, I had to shut down my Facebook page, just nasty words, nasty statements over the one minute in the radio program where I spoke about [gay marriage]." ¶ 7 According to Representative Ives, on the morning of March 22, 2013, she was in Springfield when she received a call from Murphy. Murphy informed Representative Ives of the voicemail that had prompted her to call the police. Representative Ives listened to the voicemail and described how she felt at the time:
"I felt threatened and I was frightened. I was—I am sitting in Springfield. My kids are at school. They walk home from school. This person, who I do not know, says he knows where I live and there is no longer an assault weapons ban and I better watch what I say. I mean, it is very frightening to know that somebody is targeting your home where your children live and I was afraid. I was just—it was—I—all I could do was make sure my kids were safe and worry about them. It was—I was afraid."
¶ 8 Officer Jason Scott testified that he was assigned to work the case after Officer Krolikowski's initial contact and report. He contacted defendant using the caller identification information Officer Krolikowski had collected at Representative Ives's office. Defendant confirmed that he had left a message for Representative Ives, but he denied making any threats. Defendant agreed to meet with Officer Scott at the Wheaton Police Department later that evening. At the police station, defendant explained that he had left two messages. He told Officer Scott that he first collected his thoughts on a computer and then called Representative Ives's number. He intended to leave only one message but was cut off from the system during his dictation. This necessitated the second call and message. He claimed that, during the calls, he indicated that he thought that Representative Ives's views were flawed and that she should repent as a Christian. Defendant explained his comment about knowing where Representative Ives lived as meaning that he knew only generally where she lived, based on a map posted on the Internet, but did not know her actual address. Officer Scott played the recording of the message for defendant, who confirmed that it was his voice on the recording. Officer Scott placed defendant under arrest at that time. ¶ 9 Defendant testified that he met his husband, Michael Bradley, on New Year's Eve, 1991. They committed to each other as a couple shortly thereafter and had been together ever since. In
¶ 13 The jury found defendant guilty of two counts of threatening a public official, a Class 3 felony, in violation of section 12-9 of the Code.
720 ILCS 5/12-9(a), (c) (West 2012). The trial court denied defendant's motion for judgment notwithstanding the verdict. It sentenced defendant to probation for a term of two years. Defendant timely appealed.
¶ 14 II. ANALYSIS
¶ 15 Defendant raises four contentions in his appeal: (1) section 12-9 of the Code violates the first amendment to the United States Constitution (U.S. Const., amend. I) and the free-speech provision of the Illinois Constitution (Ill. Const. 1970, art. I, § 4), (2) the State failed to prove beyond a reasonable doubt that defendant violated section 12-9, (3) the trial court erred by permitting Representative Ives to testify that she perceived the communication as a threat, and (4) the prosecutor's improper remarks during closing argument deprived defendant of a fair trial.
¶ 16 A. Constitutional Arguments
¶ 17 We start by considering defendant's argument that section 12-9 of the Code is unconstitutional because it violates the first amendment to the United States Constitution and the free-speech provision of the Illinois Constitution. "Statutes are presumed to be constitutional, and '[t]o overcome this presumption, the party challenging the statute must clearly establish that it violates the constitution.' " People v. Plank, 2018 IL 122202, ¶ 10 (quoting People v. Rizzo, 2016 IL 118599, ¶ 23). Whether a statute violates the constitution is a question of law, which we review de novo. Plank, 2018 IL 122202, ¶ 10.
We recognize that our supreme court has directed us to decide cases on nonconstitutional grounds whenever possible and to reach constitutional issues only as a last resort. In re E.H., 224 Ill. 2d 172, 178 (2006). Here, we examined each of defendant's nonconstitutional issues first, but we were unable to resolve the case without reaching the constitutional issue. We present the issue involving the constitutional question first for clarity and because it is the premise for our resolution of defendant's contentions regarding sufficiency of the evidence.
¶ 18 1. Free-Speech Provision of the Illinois Constitution
¶ 19 Although defendant asserts that section 12-9 violates the free-speech provision of the Illinois Constitution, his subsequent analyses focus solely on why he feels that section 12-9 violates the first amendment to the United States Constitution. He offers no argument and cites no authority as to why section 12-9 is unconstitutional under the Illinois Constitution. Thus, he has forfeited review of his claim with respect to the Illinois Constitution. People v. Macias, 2015 IL App (1st) 132039, ¶ 88 (argument forfeited when the defendant failed to comply with Illinois Supreme Court Rule 341(h)(7) (eff. July 1, 2018), which requires that arguments contain cogent legal argument and citations to relevant authority); see also People v. Hale, 2013 IL 113140, ¶ 15 n.4 (review was confined to federal constitutional issue when no argument was made of a concomitant right under the Illinois Constitution).
¶ 20 2. First Amendment to the United States Constitution
¶ 21 Defendant was convicted under section 12-9 of the Code, which states in relevant part:
"(a) A person commits threatening a public official *** when:
(1) that person knowingly delivers or conveys, directly or indirectly, to a public official *** by any means a communication:
(i) containing a threat that would place the public official in reasonable apprehension of immediate or future bodily harm, ***
*** and
(2) the threat was conveyed because of the performance or nonperformance of some public duty, *** or because of any other factor related to the official's public existence." 720 ILCS 5/12-9(a) (West 2012)
¶ 22 Defendant argues that section 12-9 is a content-based restriction on speech that is subject to strict scrutiny and is overbroad because it is not limited to "true threats." See
Watts v.
United States, 394 U.S. 705, 708 (1969). Moreover, he asserts, section 12-9 is not limited to "speech integrally related to criminal conduct." For all these reasons, defendant argues, section 12-9 is unconstitutional and thus void
ab initio. The State responds that section 12-9, when accompanied with proper jury instructions, satisfies the "true threat" requirement and therefore is limited to speech outside the protections of the first amendment. ¶ 23 The first amendment commands that "Congress shall make no law *** abridging the freedom of speech." U.S. Const., amend. I. The due process clause of the fourteenth amendment imposes that same prohibition upon the states.
Gitlow v.
People of New York, 268 U.S. 652, 666 (1925). Not all speech, however, falls under the protection of the first amendment.
Chaplinsky v.
New Hampshire, 315 U.S. 568, 571 (1942). Congress and the states may proscribe certain well-defined, limited classes of speech that are not constitutionally protected, including obscenity, profanity, libel, fighting words, and speech integral to criminal conduct.
Chaplinsky, 315 U.S. at 571-72;
Giboney v.
Empire Storage & Ice Co.,
336 U.S. 490, 498 (1949). Another class of unprotected speech is threats, so long as they are "true threats" and not mere political hyperbole.
Watts, 394 U.S. at 707-08; see also
Virginia v.
Black, 538 U.S. 343, 359 (2003). ¶ 24 In
Black, the United States Supreme Court considered a Virginia statute banning cross-burning done with the intent to intimidate.
Black, 538 U.S. at 347. The statute included a provision that any cross-burning was
prima facie evidence of the intent to intimidate.
Black, 538 U.S. at 347-48. The question the Court faced was whether the statute required a "true threat," which would position it as a proscription on a class of speech not protected by the first amendment. See
Black, 538 U.S. at 358-60. The Court held that Virginia was within its rights to ban cross-burning intended to intimidate but that it could not do so where all cross-burning was
prima facie evidence of intent.
Black, 538 U.S. at 362-65. The
prima facie provision stripped away the "intent to intimidate" and criminalized what might otherwise be core political speech not intended to intimidate.
Black, 538 U.S. at 365. The
prima facie provision muddled the true-threat requirement and ensnared protected speech. See
Black, 538 U.S. at 367. The statute was thus unconstitutional on its face.
Black, 538 U.S. at 367. In so holding, the Court clarified the nature of "true threats":
" '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. *** 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."
Black, 538 U.S. at 359-60.
¶ 25
Black made it clear that "true threats" encompassed situations where a speaker had the "intent to threaten."
Black, 538 U.S. at 359-60. It remained unclear, however, whether "true threats" were limited to situations where the speaker's subjective purpose was to threaten, or whether "true threats" could be shown by some other means. ¶ 26 In the wake of
Black, the federal courts of appeals were divided as to what constituted a "true threat." In
United States v.
Cassel, 408 F.3d 622, 633 (9th Cir. 2005), the Ninth Circuit interpreted
Black as requiring "proof that the speaker subjectively intended the speech as a
¶ 37 Any doubt that section 12-9 was applied constitutionally in the present case was eliminated by the jury instructions. The trial court recognized that
Dye held that a "true threat" requires intentionality. It approved a modified version of the Illinois pattern jury instruction that defines the offense (Illinois Pattern Jury Instructions, Criminal, No. 11.49 (approved May 2, 2014)), replacing the words "containing a threat" with "which he intends as a true threat." The modified instruction read as follows:
"A person commits the offense of threatening a public official (bodily harm/conveyed because of hostility) when he knowingly delivers or conveys, directly or indirectly, to a public official by any means a communication
which he intends as a true threat which would place the public official in reasonable apprehension of immediate or future bodily harm and the person conveys the
true threat because of the hostility of the person making the threat toward the status or position of the public official." (Emphases added.)
The trial court supplemented this instruction with a nonpattern instruction on the definition of a "true threat:"
"A true threat occurs where a speaker directs a threat to a person or group of persons with the intent of placing the victim, or a member of his or her immediate family, in fear of bodily harm, destruction of property or death. The speaker need not actually intend to carry out the threat."
See
Black, 538 U.S. at 359-60;
Dye, 2015 IL App (4th) 130799, ¶ 9. By relying on
Dye, the trial court ensured that the jury, in order to convict defendant under section 12-9, had to find that the communication was a "true threat," by which he intended to place the victim in reasonable apprehension of harm. The instructions were consistent with the first prong of the holding in
within its prohibitions, because it regulates only "true threats," which are not protected. Additionally, because we have held that the statute regulates only "true threats," which are unprotected, there is no need for us to address defendant's argument that it does not regulate "speech integrally related to criminal conduct."
Even among the circuits that employed an objective reasonable-person standard, division remained as to whether it should be applied from the vantage point of the speaker or the listener. United States v. Clemens, 738 F.3d 1, 10-11 (1st Cir. 2013) (discussing the disagreements among the courts of appeals and concluding that the objective-speaker test continued to be good law post-Black); accord United States v. Saunders, 166 F.3d 907, 913 n.6 (7th Cir. 1999).
The Court left open the possibility, but declined to rule, that recklessness would also satisfy the mental-state requirement under the facts of the case. Elonis, 575 U.S. at ___, 135 S. Ct. at 2012-13.
In addition to the three cases discussed here, our supreme court considered Elonis in People v. Relerford, 2017 IL 121094, ¶¶ 20-22, but made no comment, under the facts of that case, about how Elonis might have affected a "true threat" analysis. --------
¶ 40 B. Sufficiency of the Evidence
¶ 41 Defendant next argues that, even if section 12-9 is constitutional, the State failed to prove him guilty beyond a reasonable doubt, because "there was no evidence that [defendant] intended his message to [Representative] Ives as a true threat." The State responds that the language, tone, and circumstance of defendant's communication were sufficient for a rational trier of fact to infer his intent to deliver a "true threat." When a defendant challenges the sufficiency of the evidence, we ask whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. People v. Brown, 2013 IL 114196, ¶ 48 (citing Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)). It is up to the trier of fact to weigh the evidence and resolve conflicts in the testimony, and we will not substitute our judgment for that of the trier of fact absent a showing that the "evidence is so unreasonable, improbable, or unsatisfactory as to justify a reasonable doubt of the defendant's guilt." Brown, 2013 IL 114196, ¶ 48. ¶ 42 To sustain a guilty verdict, the State had to prove the essential elements of the crime charged (People v. Rothermel, 88 Ill. 2d 541, 544 (1982)), which are that (1) the defendant knowingly communicated a threat to a public official, (2) the threat would place the public official in reasonable apprehension of harm, and (3) the threat was related to the performance or nonperformance of the public official's duties. 720 ILCS 5/12-9(a) (West 2012). Defendant challenges only the first element, that he knowingly communicated a threat. ¶ 43 As discussed, the jury was instructed that the threat had to be a "true threat," which could be proved by showing that (1) defendant's intent was to threaten or (2) he knew that the communication would be viewed as a threat. Elonis, 575 U.S. at ___, 135 S. Ct. at 2012. (As noted, however, the jury was instructed only on the first prong.) Defendant argues that he did not intend to threaten Representative Ives and that the evidence did not show otherwise. He testified that the purpose behind his communication was to express disagreement with Representative Ives's political positions, not to threaten. He argues that his testimony went "unrebutted" or "without significant contradiction" and that the jury was not entitled to ignore his testimony. People v. Jordan, 4 Ill. 2d 155, 162-63 (1954). ¶ 44 He asserts that the only logical conclusion that could be drawn from his statements about putting people in the crosshairs of a gun and that "perhaps we should do the same for you" was that it was a conditional threat to create a website. He explains that he disagreed with Representative Ives's position on the second amendment and was disturbed after reading an article she wrote that read in part:
"I believe Second Amendment rights are a defense against tyranny. They prevent the government from holding more power than the people it serves. I believe law-abiding citizens, with proper training, should have the right to own and carry firearms if they so choose."
In a separate op-ed that appeared in the Chicago Tribune, Representative Ives expressed displeasure with the leadership of Speaker Madigan. She wrote:
"Yes, it's business as usual in Illinois. The question is how much more damage needs to be done before we stop accepting 'business as usual?' How many more jobs do we need to lose? How many more times should our credit be downgraded? How many more
businesses need to close? How much more debt do we need to rack up? How many more political games have to be played on tax-payer time before we insist on something better? How much more waste and corruption do we have to endure before we demand revolution?"
From these passages, defendant maintains that it was reasonable for him to be concerned that Representative Ives was calling for "violent, armed revolution against Speaker Madigan" and "tyrants." He claims that he was only warning her of the consequences that might flow from her advocacy of such a revolution. ¶ 45 Defendant compares the circumstances of his statement to those in
Dye, where the court reversed a conviction under section 12-9: "[W]e see no evidence justifying a reasonable inference that *** [the defendant] intended to convey the idea of violent retribution ***."
Dye, 2015 IL App (4th) 130799, ¶ 12. In
Dye, the defendant was upset with his public defender after she told him that she would have to turn over to the prosecutor evidence harmful to his case.
Dye, 2015 IL App (4th) 130799, ¶ 3. He threatened to complain about her to the judge and accused her of working against him for the State.
Dye, 2015 IL App (4th) 130799, ¶ 4. As he left her office through a waiting room, he repeated the words, "I'm gonna get you." When she asked if he was threatening her, he responded, "No, no, I ain't threatening you." The court focused on the word "get" and reasoned that it had many nonviolent connotations, particularly in light of the fact that the defendant specifically and in real time denied that he meant the statement as a threat.
Dye, 2015 IL App (4th) 130799, ¶¶ 11-12. ¶ 46
Dye is distinguishable. Defendant here did not personally know Representative Ives and was not speaking to her face-to-face. He left a prepared statement on her voicemail system at around 11 p.m. on a weekday night, well after business hours. He used the term "we" when
best position to observe the verbal and nonverbal cues and assign weight to each. It was within the province of the jury to credit Murphy's testimony over defendant's. ¶ 49 It appears from the record that defendant was unaware of the existence of the recording of his second message until the conclusion of his interview with Officer Scott. Officer Scott testified that he asked defendant about the contents of that call and defendant described it as:
"We know where you live and maybe we should construct the same website, too, and, remember, the assault weapons ban has been lifted."
Compare those words to defendant's actual message, which was memorialized in the recording:
"Your Tea Party brethren, Sara[h] Palin, put up a map that included the names, locations, faces of Democratic candidates, and put them in the cross-hairs of a gun. Perhaps we should do the same for you. We know where you live. There is no longer an assault weapons ban. Perhaps you should think about that before you speak the next time, you stupid fucking bitch."
The account defendant gave to the police was less menacing than his actual message. A reasonable inference from the difference is that he understood that what he said was threatening and, when faced with a police investigation, he attempted to mitigate the content of his message. ¶ 50 Defendant explained that Representative Ives was trying to incite an armed revolution and that he was trying only to make her aware of the effects of those words. He repeatedly used the collective pronoun "we" during the message, suggesting that he was part of some larger group. It is difficult to envisage a legitimate purpose for such language if he was trying only to express his personal opposition to her political views. He followed the "cross-hairs of a gun" comment immediately with "we know where you live" and "there is no longer an assault weapons ban." He testified that when he delivered the message he knew that Giffords had been
shot and severely injured. His claim that his testimony went unrebutted is contradicted by the record. Based on the evidence, it was certainly reasonable for the jury to conclude that defendant's explanation was strained and that he intended to threaten Representative Ives.
¶ 51 C. Admissibility of Evidence
¶ 52 Defendant claims that the trial court erred by permitting Representative Ives to testify to her reaction to the message. Defendant argues that her subjective feelings of apprehension were not an element of the offense and were therefore irrelevant and highly prejudicial. Quoting Watts, 394 U.S. at 708, the State responds that "the reaction of the listeners" is relevant to determining whether the communication was a "threat." The admissibility of evidence is within the sound discretion of the trial court, and we will not disturb such a ruling absent an abuse of discretion. People v. Adkins, 239 Ill. 2d 1, 23 (2010). "A trial court abuses its discretion when no reasonable person would take the view adopted by the trial court." People v. Axtell, 2017 IL App (2d) 150518, ¶ 90. ¶ 53 Defendant argues that Representative Ives's testimony about her subjective apprehension of harm was irrelevant because section 12-9 requires only that a public official would be placed in "reasonable apprehension of immediate or future bodily harm." 720 ILCS 5/12-9(a)(1)(i) (West 2012). Defendant appears to argue that the term "reasonable" refers only to an objective test of how a fictional reasonable person would view the communication, rather than to whether the actual target of the communication reasonably viewed it as a threat. Defendant offers no authority to support this contention. Illinois Rule of Evidence 401 defines relevant evidence as evidence that has any tendency to make the existence of any fact in controversy more or less probable. Ill. R. Evid. 401 (eff. Jan. 1, 2011). "Relevancy is established where a fact offered tends to prove a fact in controversy or renders a matter in issue more or less probable." (Internal quotation marks omitted.) People v. Free, 94 Ill. 2d 378, 413 (1983). Representative Ives's testimony about how she felt after hearing the message was relevant to whether she would be placed in "reasonable apprehension of immediate or future bodily harm." It was particularly relevant here because "reasonable apprehension" is an element of the offense and it was for the jury to decide whether Representative Ives's apprehension was reasonable. ¶ 54 Defendant next argues that Representative Ives's testimony was "extremely prejudicial" because it tended to show the impact of the crime on the alleged victim during the guilt phase of the trial. Defendant cites, without any elaboration, three cases that are inapposite. People v. Hope, 116 Ill. 2d 265, 276-78 (1986) (prosecutor's uninvited comments about a murdered victim's family were an improper appeal to the emotions of the jurors); People v. Blue, 189 Ill. 2d 99, 130 (2000) (prosecutor's argument that a murdered police officer's family needed to hear from the jury was patently immaterial to the defendant's guilt or innocence); People v. Bernette, 30 Ill. 2d 359, 371 (1964) (prosecutor's comments during closing argument about a murder's impact on the victim's family were irrelevant and highly prejudicial). None of these cases involved the victim of a crime testifying with regard to an element of the offense, which is what happened here. Representative Ives's testimony went directly to an element of the offense, and it added context that the jury could use to determine whether she would reasonably see the communication as a threat. Representative Ives's testimony was much more probative than prejudicial. "Evidence is admissible if it is relevant to an issue in dispute and its probative value is not substantially outweighed by its prejudicial effect." People v. Herrero, 324 Ill. App. 3d 876, 881 (2001). The trial court did not abuse its discretion by permitting the testimony.
¶ 55 D. Prosecutor's Comments During Closing Argument
phoned the police after hearing the message and the police followed up by contacting defendant. Defendant did not object to this comment at trial and thus forfeited the issue. Burman, 2013 IL App (2d) 110807, ¶ 32 ("To preserve an issue for review on appeal, a defendant must object to the error at trial and include the objection in a posttrial motion."). Defendant states that this issue should nonetheless be reviewed under the plain-error doctrine, but he makes no cogent legal argument as to why plain error should apply. Forfeiture aside, the prosecutor's comments were not improper. He described the actions that the witnesses testified to taking after hearing the message. He suggested that the jury could logically infer that those witnesses would not have taken those actions unless they believed that the message contained a threat. As discussed, the victim's reasonable apprehension of a threat is an element of the offense. See Free, 94 Ill. 2d at 413. These witnesses' reactions helped to form the context of the message and whether Representative Ives reasonably apprehended harm. Therefore, the comments were not error.
¶ 64 III. CONCLUSION
¶ 65 For the foregoing reasons, we affirm the judgment of the circuit court of Du Page County. As part of our judgment, we grant the State's request that defendant be assessed $50 as costs for this appeal. 55 ILCS 5/4-2002(a) (West 2016); People v. Nicholls, 71 Ill. 2d 166, 178 (1978). ¶ 66 Affirmed.