                                      2020 IL 123989



                                        IN THE
                               SUPREME COURT
                                            OF
                          THE STATE OF ILLINOIS




                                   (Docket No. 123989)

               THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.
                        MARSHALL ASHLEY, Appellant.


      Opinion filed January 24, 2020.—Modified upon denial of rehearing March 23,
                                        2020.



        JUSTICE NEVILLE delivered the judgment of the court, with opinion.

        Chief Justice Burke and Justices Thomas, Kilbride, Garman, Karmeier, and
     Theis concurred in the judgment and opinion.



                                        OPINION

¶1      Following a bench trial in the circuit court of McLean County, defendant
     Marshall Ashley was convicted of stalking (720 ILCS 5/12-7.3(a)(2), (c)(1) (West
     2014)) and was sentenced to serve a prison term of one year and six months.
     Defendant appealed, arguing that the provisions of the stalking statute under which
     he was convicted are facially unconstitutional in violation of the first amendment
     and substantive due process as guaranteed by the United States Constitution (U.S.
     Const., amends. I, XIV). The appellate court rejected defendant’s arguments and
     affirmed his conviction. 2018 IL App (4th) 150293-U. This court granted
     defendant’s petition for leave to appeal. Ill. S. Ct. R. 315 (eff. July 1, 2018). We
     now affirm the judgment of the appellate court.


¶2                                  I. BACKGROUND

¶3       In October 2014, the State charged defendant with two counts of felony
     stalking, alleging he knowingly engaged in a course of conduct directed at Keshia
     Tinch, which defendant knew or should have known would cause a reasonable
     person (1) to fear for her safety (count I) (720 ILCS 5/12-7.3(a)(1) (West 2014))
     and (2) to suffer emotional distress (Count II) (id. § 12-7.3(a)(2)).

¶4      In a bench trial, the State presented the following evidence. Defendant and
     Tinch had been dating for approximately two years, had a child together, and lived
     together in an apartment in Normal, Illinois.

¶5       Karen Miller, Tinch’s mother, testified that she and several other relatives,
     including children, were at the apartment on October 21, 2014, when Tinch
     received a phone call from defendant. During that call, which Miller heard on
     speaker mode, defendant and Tinch argued, and defendant threatened to come over
     and kill Tinch and “everyone with a banger,” which Miller understood to mean a
     gun.

¶6       Tinch testified that, after receiving this phone call, she, Miller and the other
     relatives went to Miller’s house. While in transit, Tinch called the police and gave
     them her address and her mother’s address.

¶7       Nicholas Mishevich, an officer with the Normal Police Department, testified
     that he responded to Miller’s address. While Mishevich was present, Tinch received
     multiple phone calls and text messages from the same phone number. Mishevich
     took photographs of the text messages and identified People’s Exhibit Nos. 1-A and
     1-B as accurately depicting the text messages he saw on Tinch’s phone that night.




                                            -2-
¶8       Officer Jonathan McCauley testified that he was on patrol on October 21, 2014,
     and was dispatched to the area near Tinch’s apartment to look for defendant. He
     pulled over a vehicle with defendant in the passenger seat and took defendant into
     custody. McCauley interrogated defendant at the police station and documented the
     text messages exchanged with Tinch on defendant’s phone.

¶9       Text messages from defendant to Tinch introduced at trial included the
     following: 1

            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*** 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*** u don[’]t check up on me you don’t know how
        [I’]m living”

            7:12 p.m.: “Where the f*** are u”

            7:12 p.m.: “Cause rode past in seen lights on there”

            7:23 p.m.: “Answer my f*** 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***”

            7:54 p.m.: “So u ain’t gon pick up huh”



        1
         All quotations are [sic] unless an alteration is indicated.




                                                     -3-
              7:57 p.m.: “Rite you not picking up cause uk im f*** rite b*** [I] swear [I]
          tried to trust your thot a*** w[h]en [I] go over there any tim[e] said u had a
          n*** over there imma go in on you’re a***”

              8:23 p.m.: “I swear b*** if a n*** there its g[o]ing to be one”

              8:24 p.m.: “U them f*** 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 messages documented
       from defendant’s phone were consistent with those taken from Tinch’s phone,
       except that defendant’s phone did not contain the 8:31 p.m. message referencing
       guns.

¶ 10       Tinch testified that the text messages “scared” her and the message shortly after
       7 p.m. “terrified” her because she “knew right then and there that [defendant] was
       going to come after [her] even more.” Over defense objection, Tinch was permitted
       to testify to two prior uncharged incidents in which defendant held Tinch at
       gunpoint.

¶ 11       Defendant testified in his defense that he and Tinch lived together and had been
       arguing often in October 2014. At some point, Tinch informed defendant that she
       was getting evicted from the apartment. On October 21, 2014, Tinch had called
       defendant to ask if he would help her move because someone was coming to change
       the locks that day. Defendant was “heated” because he had given Tinch money for
       rent, which he learned she used for other things. Defendant admitted that he
       engaged in some heated exchanges with Tinch but denied that he threatened her
       and specifically denied threatening her with a gun.

¶ 12       Two prior convictions, a 2013 criminal trespass to residence and a 2014
       domestic battery, were admitted for the purpose of impeaching defendant’s
       testimony.

¶ 13       The circuit court found defendant guilty of stalking based on the conduct
       alleged in count II, finding that defendant’s text messages and phone calls would
       cause a reasonable person to suffer emotional distress. Defendant was subsequently



                                               -4-
       sentenced to a term of one year and six months’ imprisonment, followed by a four-
       year term of mandatory supervised release.

¶ 14       On appeal, defendant argued that subsection (a) of the stalking statute violated
       state and federal constitutional guarantees of (1) due process, because it lacks a
       mens rea requirement and is unduly vague, and (2) free speech, because it
       overbroadly criminalizes a substantial amount of protected speech.

¶ 15      The appellate court rejected defendant’s argument that subsection (a) violates
       due process, relying on this court’s decision in People v. Relerford, 2017 IL
       121094, ¶ 22. 2018 IL App (4th) 150293-U, ¶ 26.

¶ 16       The appellate court acknowledged that Relerford held the “communications to
       or about” portion of the statute was overbroad and unconstitutionally restricted the
       right to free speech. Id. ¶¶ 35-37. However, the court determined that defendant’s
       conviction could be sustained based on conduct that was otherwise prohibited by
       the stalking statute, specifically, that his conduct threatened Tinch. Id. ¶¶ 41-43.

¶ 17       The appellate court acknowledged that there was conflicting precedent as to
       whether a true threat requires a showing of the speaker’s subjective intent to
       threaten or, alternatively, an objective standard for statements that are reasonably
       understood to convey a threat even if the speaker did not so intend. The court found
       that it need not determine which standard governs because defendant’s statements
       to Tinch were true threats under either standard. Id. ¶ 42. Defendant appeals to this
       court.


¶ 18                                     II. ANALYSIS

¶ 19       In challenging his conviction, defendant asserts that the provisions of the
       stalking statute under which he was convicted are facially unconstitutional because
       they violate the right to free speech as guaranteed under the United States
       Constitution. U.S. Const., amend. I. He also argues that the applicable provisions
       violate substantive due process because they improperly criminalize innocent
       conduct. U.S. Const., amend. XIV.




                                               -5-
¶ 20                                 A. The Stalking Statute

¶ 21       Illinois’s stalking statute was adopted in 1992 and defined the offense as
       requiring an intentional threat of a violent crime in addition to multiple acts of
       following or surveillance in furtherance of the threat. See Pub. Act 87-870, § 1 (eff.
       July 12, 1992) (adding 720 ILCS 5/12-7.3(a)). The statute was subsequently
       modified to require that the prohibited conduct be undertaken “knowingly and
       without lawful justification.” Pub. Act 88-402, § 5 (eff. Aug. 20, 1993). This court
       rejected a first amendment overbreadth challenge to the 1994 version of the statute,
       holding that it prohibited only speech that was an integral part of unlawful conduct.
       See People v. Bailey, 167 Ill. 2d 210, 227 (1995). This conclusion was based on the
       fact that the statute embraced only activities performed without lawful authority
       and required that the defendant threaten the victim and take action in furtherance
       of the threat. Id. at 227-28.

¶ 22       Of relevance here, the General Assembly again amended the statute in 2010 to
       expand the definition of the offense of stalking. See Pub. Act 96-686, § 5 (eff. Jan.
       1, 2010). Although the prior version of the offense was retained and renumbered as
       subsection (a-3), the legislature also crafted new statutory language to encompass
       additional prohibited conduct. See id.; Relerford, 2017 IL 121094, ¶ 27. The
       amended statute included provisions that targeted conduct accomplished through
       the use of newer technology such as electronic communications as well as conduct
       that historically has led to homicide. Pub. Act 96-686, § 5 (eff. Jan. 1, 2010). In
       discussing the 2010 modifications, Senator Hutchinson, a sponsor of the proposed
       public act, stated that it

          “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. *** 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. This will broaden the definition of stalking. It amends



                                               -6-
          the Criminal Code to update our stalking laws. *** [I]t 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).

¶ 23       Following adoption of the 2010 amendments, the version of the stalking statute
       that was in effect when defendant was charged and convicted provided, in relevant
       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.

              (a-3) A person commits stalking when he or she, knowingly and without
          lawful justification, on at least 2 separate occasions follows another person or
          places the person under surveillance or any combination thereof 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 in reasonable apprehension of immediate or future
              bodily harm, sexual assault, confinement or restraint to or of that person or
              a family member of that person.” 720 ILCS 5/12-7.3(a), (a-3) (West 2014).

       The phrase “course of conduct,” as defined in subsection (c)(1), included:

          “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.” Id. § 12-7.3(c)(1).




                                                -7-
¶ 24       Also, subsection (c) defined “emotional distress” as “significant mental
       suffering, anxiety or alarm.” Id. § 12-7.3(c)(3). The phrase “reasonable person” is
       defined as “a person in the victim’s situation.” Id. § 12-7.3(c)(8).

¶ 25       Thus, under the terms of the amended statute, two or more threats that the
       defendant knows or should know would cause a reasonable person to suffer
       emotional distress constitute a course of conduct sufficient to establish the offense
       of stalking. See id. § 12-7.3(a)(2), (c)(1).


¶ 26                  B. The First Amendment and Its “True Threat” Exception

¶ 27       We initially consider defendant’s claim of unconstitutionality under the first
       amendment right to free speech. Defendant asserts that the provisions of the
       amended stalking statute under which he was convicted (id.) render the statute
       overly broad in violation of the first amendment because they criminalize protected
       speech. The State disputes defendant’s argument, contending that the term
       “threatens” as used in subsection (c)(1) refers only to true threats that fall outside
       the protection of the first amendment. We agree with the State.

¶ 28       The first amendment, which applies to the states through the fourteenth
       amendment, precludes the enactment of laws “abridging the freedom of speech.”
       U.S. Const., amends. I, XIV. Generally, a statute is overly broad on its face if it
       proscribes constitutionally protected activity as well as activity that may be
       prohibited without offending constitutional rights. Grayned v. City of Rockford, 408
       U.S. 104, 114 (1972); Zwickler v. Koota, 389 U.S. 241, 249-50 (1967) (collecting
       cases); Relerford, 2017 IL 121094, ¶ 50. The doctrine of first amendment
       overbreadth “ ‘represents a departure from the traditional rule that a person may not
       challenge a statute on the ground that it might be applied unconstitutionally in
       circumstances other than those before the court.’ ” People v. Minnis, 2016 IL
       119563, ¶ 14 (quoting Bates v. State Bar, 433 U.S. 350, 380 (1977)). As a
       consequence, the overbreadth doctrine allows a party to assert a facial violation of
       the first amendment, even if that party’s conduct would not fall within the
       amendment’s protection. Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973);
       Relerford, 2017 IL 121094, ¶ 50; Minnis, 2016 IL 119563, ¶ 14. This exception to
       the traditional requirement of standing is justified by the important goal of avoiding
       the potential chilling effect that overly broad statutes have on the exercise of



                                               -8-
       protected speech. Virginia v. Hicks, 539 U.S. 113, 119 (2003); Relerford, 2017 IL
       121094, ¶ 50; Minnis, 2016 IL 119563, ¶ 14.

¶ 29       A statute “may be invalidated as overbroad if ‘a substantial number of its
       applications are unconstitutional, judged in relation to the statute’s plainly
       legitimate sweep.’ ” United States v. Stevens, 559 U.S. 460, 473 (2010) (quoting
       Washington State Grange v. Washington State Republican Party, 552 U.S. 442, 449
       n.6 (2008)). Considering its limited application, the overbreadth doctrine should be
       applied “only as a last resort” and only if the degree of overbreadth is substantial.
       Broadrick, 413 U.S. at 613. In addition, facial overbreadth will not be invoked
       when the challenged statute is subject to a limiting construction. Id.

¶ 30      Under the first amendment, a government “has no power to restrict expression
       because of its message, its ideas, its subject matter, or its content.” (Internal
       quotation marks omitted.) Ashcroft v. American Civil Liberties Union, 535 U.S.
       564, 573 (2002); Relerford, 2017 IL 121094, ¶ 31. Consequently, “[t]he
       Constitution gives significant protection from overbroad laws that chill speech
       within the First Amendment’s vast and privileged sphere.” Ashcroft v. Free Speech
       Coalition, 535 U.S. 234, 244 (2002); Relerford, 2017 IL 121094, ¶ 31.

¶ 31       Yet the United States Supreme Court has recognized that certain traditional
       categories of expression do not fall within the protections of the first amendment,
       and content-based restrictions as to those recognized categories of speech have been
       upheld. Stevens, 559 U.S. at 468. Those accepted categories of unprotected speech
       include true threats, which may be banned without infringing on first amendment
       protections. United States v. Alvarez, 567 U.S. 709, 717 (2012); Stevens, 559 U.S.
       at 468; Watts v. United States, 394 U.S. 705, 708 (1969) (per curiam); see also
       Relerford, 2017 IL 121094, ¶ 33; Bailey, 167 Ill. 2d at 227-28.

¶ 32       Where a statute criminalizes a form of pure speech, it must be interpreted “with
       the commands of the First Amendment clearly in mind.” Watts, 394 U.S. at 707.
       Therefore, “[w]hat is a threat must be distinguished from what is constitutionally
       protected speech.” Id.

¶ 33      The Supreme Court has held that “ ‘[t]rue 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




                                               -9-
       individuals.” Virginia v. Black, 538 U.S. 343, 359 (2003) (citing Watts, 394 U.S. at
       708). “The speaker need not actually intend to carry out the threat. Rather, a
       prohibition on true threats ‘protect[s] individuals from the fear of violence’ and
       ‘from the disruption that fear engenders,’ in addition to protecting people ‘from the
       possibility that the threatened violence will occur.’ ” Id. at 359-60 (quoting R.A.V.
       v. St. Paul, 505 U.S. 377, 388 (1992)).

¶ 34       Defendant acknowledges that the government may restrict the content of speech
       in certain limited areas, including the recognized exception for true threats. He
       maintains, however, that the amended stalking statute is unconstitutionally
       overbroad because the “threatens” provision sweeps in protected speech that
       expresses an intent to engage in lawful, nonviolent behavior. Therefore, we
       construe the term “threatens” in subsection (c)(1) to determine whether it
       unconstitutionally infringes on the boundaries of the first amendment. More to the
       point, we must determine whether the term “threatens” falls within the category of
       “true threats” that are not protected by the first amendment.

¶ 35       In general, statutes are presumed constitutional, and the party challenging the
       constitutionality of a statute carries the burden of establishing that the statute is
       unconstitutional. Minnis, 2016 IL 119563, ¶ 21. This court has a duty to construe
       the statute in a manner that upholds its validity and constitutionality if reasonably
       possible. Id.; Bailey, 167 Ill. 2d at 225. The determination of whether a statute is
       constitutional is a question of law to be reviewed de novo. Minnis, 2016 IL 119563,
       ¶ 21.

¶ 36       The primary objective in construing a statute is to ascertain and give effect to
       the legislature’s intent, bearing in mind that the most reliable indicator of that intent
       is the statutory language, given its plain and ordinary meaning. People v. Casas,
       2017 IL 120797, ¶ 18. A reviewing court must view the statute as a whole,
       construing words and phrases in light of other relevant statutory provisions and not
       in isolation. Id. In addition, it is appropriate for the court to consider the reason for
       the law, the problems sought to be remedied, the purposes to be achieved, and the
       consequences of construing the statute one way or another. Id. Moreover, where a
       word is used in different sections of the same statute, the presumption is that the
       word is used with the same meaning throughout the statute, unless a contrary
       legislative intent is clearly expressed. People v. Maggette, 195 Ill. 2d 336, 349




                                                - 10 -
       (2001) (citing People ex rel. Scott v. Schwulst Building Center, Inc., 89 Ill. 2d 365,
       371 (1982)); see also People v. Lutz, 73 Ill. 2d 204, 212 (1978); Moran v. Katsinas,
       16 Ill. 2d 169, 174 (1959).


¶ 37                                   1. Unlawful Conduct

¶ 38       Defendant claims that the plain meaning of the term “threatens” in subsection
       (c)(1) is not limited to unlawful violence and, therefore, sweeps beyond the first
       amendment exception for true threats. The State counters that the term “threatens”
       as used in subsection (c)(1) is consistent and coextensive with the exception for true
       threats.

¶ 39       Both defendant and the State rely on various dictionary definitions of the terms
       “threat” and “threatens” to support their respective positions. Defendant cites
       definitions that refer to an expression of intent to do something undesirable or to
       take some other hostile action as a means of retribution. The State conversely cites
       definitions that refer to an expression of intent to inflict evil, injury, or damage.
       Given that these divergent definitions can be read to support both positions, they
       are not dispositive of the question presented here.

¶ 40       According to defendant, any course of conduct that threatens economic or
       emotional injuries will suffice as a predicate for stalking. Defendant maintains that,
       because the legislature broadened the scope of behavior prohibited by the amended
       statute, the term “threatens” cannot be interpreted to include only a threat of bodily
       harm, sexual assault, confinement, or restraint, as set forth in section (a-3). In
       support, defendant relies on our appellate court’s recent decision in People v.
       Morocho, 2019 IL App (1st) 153232, which held that subsection (a)(2) is overbroad
       on its face and unconstitutional because it criminalizes speech that threatens lawful
       action unrelated to violence where the speaker knows or should know that the
       threats would cause a reasonable person to suffer emotional distress. See id. ¶¶ 36-
       37, 40, 44, 48-49.

¶ 41       In addressing defendant’s argument, we construe the term “threatens” in the
       context of the stalking statute as a whole and considering the legislative intent and
       the purpose sought to be achieved. See Casas, 2017 IL 120797, ¶ 18. In addition,




                                               - 11 -
       we are mindful of our obligation to construe the statute as constitutional if possible.
       See Minnis, 2016 IL 119563, ¶ 21; Bailey, 167 Ill. 2d at 225.

¶ 42       As this court has observed, the intent of the legislature 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.” Bailey, 167 Ill. 2d at 224. Based on those considerations, we held that the
       stalking statute must be construed to proscribe only unlawful conduct, even though
       that condition was not expressly included in its language at the time. Id.

¶ 43       When the 2010 amendments were adopted, the prior version of the stalking
       statute was renumbered as section (a-3) and criminalized threats of bodily harm,
       sexual assault, confinement, or restraint committed along with two incidents of
       following or monitoring of the victim. 720 ILCS 5/12-7.3(a-3) (West 2010).
       Section (a-5) also included bodily harm, sexual assault, confinement, or restraint in
       defining a subsequent offense of stalking based on similar conduct. Id. § 12-7.3(a-
       5). Thus, the General Assembly was aware that the prohibition against two or more
       threats issued in conjunction with following or monitoring of the victim specifically
       referred to unlawful and violent behavior.

¶ 44        The 2010 amendments expanded the scope of the stalking statute by updating
       its language to include “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). In addition, the amendments were intended to
       further protect stalking victims and enhance the ability of law enforcement to
       intercede before the threatening speech or conduct escalates to physical harm or
       death. Id.

¶ 45       When considered within the context of the entire statute, we construe the term
       “threatens” to be consistent with the word “threat” in subsections (a-3) and (a-5),
       which target threats of bodily harm, sexual assault, confinement, or restraint. 720
       ILCS 5/12-7.3(a-3), (a-5) (West 2010). Given the nature and purpose of the statute
       and the legislative goals underlying the 2010 amendments, we determine that
       “threatens” refers to unlawful violence of the type specified in sections (a-3) and
       (a-5). See Maggette, 195 Ill. 2d at 349 (holding that, where language is used in
       different sections of the same legislative act, the terms have the same meaning
       throughout the statute, unless contrary legislative intent is clearly expressed).



                                               - 12 -
       Neither the statutory language nor the legislative history demonstrates a clearly
       expressed intent that the term “threatens” in subsection (c)(1) should be construed
       differently from other provisions of the statute.

¶ 46       In adopting the 2010 amendments, the General Assembly expressed a dual
       interest in avoiding harassment through the use of new technologies and in
       preventing conduct that precedes violent attacks. Construing the term “threatens”
       as referring to true threats of unlawful violence gives effect to those legislative
       goals and is in accord with our obligation to construe a statute so as to uphold its
       constitutionality where reasonably possible. See Minnis, 2016 IL 119563, ¶ 21;
       Bailey, 167 Ill. 2d at 225.

¶ 47       Accordingly, we conclude that the legislature intended that the term “threatens”
       in subsection (c)(1) refers to “true threats” of unlawful violence such as bodily
       harm, sexual assault, confinement, and restraint, as set forth in subsections (a-3)
       and (a-5). As such, the term “threatens” falls outside the protection of the first
       amendment. Therefore, we reject defendant’s claim that subsection (c)(1) is
       unconstitutionally overbroad because it criminalizes protected speech consisting of
       threats to engage in lawful, nonviolent behavior. To the extent that the appellate
       court’s decision in Morocho is inconsistent with our reasoning, it is overruled.


¶ 48                                      2. Mental State

¶ 49                          a. Intentional and Knowing Behavior

¶ 50       Defendant next asserts that the “threatens” provision of the amended stalking
       statute is unconstitutionally overbroad because it does not include the requisite
       mental state for a “true threat.” Placing significant reliance on the Supreme Court’s
       decision in Black, defendant asserts that the amended statute exceeds the scope of
       a true threat because it fails to require that the accused act with the specific intent
       to threaten the victim. We do not agree.

¶ 51       As set forth above, the Supreme Court explained in Black that “ ‘[t]rue 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.” Black, 538 U.S. at 359. Although the Supreme




                                               - 13 -
       Court employed the phrase “means to communicate” in defining the nature of a true
       threat, it did not identify any specific mental state that would permit the restriction
       of such speech without impinging on first amendment protections.

¶ 52      After Black was decided, certain federal courts of appeals addressed that
       question and reached divergent conclusions. Compare United States v. Cassel, 408
       F.3d 622, 633 (9th Cir. 2005) (interpreting Black as requiring proof that the accused
       subjectively intended the communication as a threat), with United States v. Fuller,
       387 F.3d 643, 646 (7th Cir. 2004) (adopting an objective standard to hold that a
       communication is a true threat if a reasonable person would foresee that the
       communication would be interpreted as a threat).

¶ 53       The Supreme Court offered some guidance with its decision in Elonis v. United
       States, 575 U.S. ___, 135 S. Ct. 2001 (2015). In Elonis, the defendant was convicted
       of violating a federal statute prohibiting the transmission, in interstate commerce,
       of a threat to injure the person of another. Id. at ___, 135 S. Ct. at 2004 (citing 18
       U.S.C. § 875(c) (2006)). The legal issue that brought the case before the Court was
       whether a jury instruction defining a “true threat” was improper because it
       permitted a finding of guilt based on the jury’s conclusion that “ ‘a reasonable
       person would foresee that the statement would be interpreted as a serious
       expression of an intention to inflict bodily injury or to take the life of an
       individual.’ ” Id. at ___, 135 S. Ct. at 2007.

¶ 54       The Supreme Court identified the question presented as “whether the [federal
       threat] statute also requires that the defendant be aware of the threatening nature of
       the communication, and—if not—whether the First Amendment requires such a
       showing.” (Emphasis added.) Id. at ___, 135 S. Ct. at 2004. In addressing that
       question, the Court noted the statute required that a communication containing a
       threat be transmitted in interstate commerce but it did not specify any mental state
       with respect to those elements. Id. at ___, 135 S. Ct. at 2008. The Court further
       noted that, where a statute fails to identify any mental state for a criminal offense,
       federal courts will infer an applicable mental state to differentiate unlawful conduct
       from otherwise lawful conduct. Id. at ___, 135 S. Ct. at 2009-10.

¶ 55       In considering the appropriate mental state to be inferred, the Court recognized
       that federal courts are reluctant to infer a negligence standard in criminal statutes.
       Id. at ___, 135 S. Ct. at 2011. The Court reasoned that the threat statute at issue



                                               - 14 -
       requires that the defendant know that his communication contains a threat because
       “ ‘wrongdoing must be conscious to be criminal.’ ” Id. at ___, 135 S. Ct. at 2012
       (quoting Morissette v. United States, 342 U.S. 246, 252 (1952)). The Court
       concluded that “[t]here is no dispute that the mental state requirement in [the threat
       statute] is satisfied if the defendant transmits a communication for the purpose of
       issuing a threat, or with knowledge that the communication will be viewed as a
       threat.” (Emphasis added.) Id. at ___, 135 S. Ct. at 2012. Based on that conclusion,
       the Court determined that it was not necessary to consider any first amendment
       issues. Id. at ___, 135 S. Ct. at 2012. Thus, Elonis essentially recognized that a
       statutory ban on true threats satisfies the demands of the first amendment if it
       requires proof of either specific intent or a knowing mental state. See People v.
       Bona, 2018 IL App (2d) 160581, ¶ 32 (interpreting Elonis as implicitly holding that
       the intentional or knowing mental state would satisfy the minimum requirements
       of a “true threat”); People v. Khan, 2018 IL App (2d) 160724, ¶ 36 (same).

¶ 56       Under the guiding principles set forth in Black and Elonis, we construe the
       phrase “means to communicate” as requiring that the accused be consciously aware
       of the threatening nature of his or her speech, and the awareness requirement can
       be satisfied by a statutory restriction that requires either an intentional or a knowing
       mental state. Therefore, the first amendment exception for a “true threat” includes
       situations where the speaker understands the threatening nature of his or her
       communication and the import of the words used. See Elonis, 575 U.S. at ___, 135
       S. Ct. at 2009-12; Black, 538 U.S. at 359-60; see also Carrell v. United States, 165
       A.3d 314, 324-25 (D.C. 2017) (en banc); United States v. LaFontaine, 847 F.3d
       974, 979-80 (8th Cir. 2017). In other words, we hold that the accused must be
       subjectively aware of the threatening nature of the speech.

¶ 57       Here, section 12-7.3(a) of the amended statute specifically includes the
       knowing mental state in defining the offense of stalking. 720 ILCS 5/12-7.3(a)
       (West 2014). Also, section 4-5 of the Criminal Code of 2012 sets forth the mental
       state of “knowledge” and provides, in relevant part, as follows:

              “A person knows, or acts knowingly or with knowledge of:

                 (a) [t]he nature or attendant circumstances of his or her conduct,
              described by the statute defining the offense, when he or she is consciously
              aware that his or her conduct is of that nature or that those circumstances



                                                - 15 -
              exist. Knowledge of a material fact includes awareness of the substantial
              probability that the fact exists.

                  (b) [t]he result of his or her conduct, described by the statute defining
              the offense, when he or she is consciously aware that that result is
              practically certain to be caused by his conduct.” (Emphases added.) Id. § 4-
              5.

       These statutory provisions are consistent with the Elonis Court’s recognition that
       the mental state requirement for communicating a true threat is satisfied if “the
       defendant transmits a communication for the purpose of issuing a threat, or with
       knowledge that the communication will be viewed as a threat.” Elonis, 575 U.S. at
       ___, 135 S. Ct. at 2012. Accordingly, we conclude that the true threat exception
       under the first amendment does not mandate that the accused specifically intend to
       threaten the victim and a statutory ban on threats that requires knowing conduct is
       not unconstitutionally overbroad.

¶ 58       Arguing for a contrary result, defendant places significant reliance on the
       statement in Black that “[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.” See Black, 538 U.S. at 360. We note, however, that defendant’s argument
       misconstrues the import of Black. The quoted language pertained to a specific
       statute that penalized cross burning “with an intent to intimidate a person or group
       of persons.” See id. at 347. Thus, the statement on which defendant relies did not
       relate to all true threats. Therefore, we reject defendant’s claim that specific intent
       to threaten the victim is necessary for a true threat.

¶ 59       Defendant also relies on People v. Goodwin, 2018 IL App (1st) 152045, ¶ 38,
       People v. Wood, 2017 IL App (1st) 143135, ¶ 13, and People v. Dye, 2015 IL App
       (4th) 130799, ¶ 10, all of which held that a “true threat” requires intentional conduct
       by the defendant. We find defendant’s reliance on these cases is misplaced, where
       they have improperly expanded the holding in Black and failed to fully consider the
       reasoning expressed in Elonis.




                                               - 16 -
¶ 60                  b. Unintentional Behavior and the Negligence Standard

¶ 61       Defendant also contends that the amended stalking statute is unconstitutionally
       overbroad where it allows conviction of a speaker who negligently conveys a
       message that a reasonable person would understand as threatening. According to
       defendant, the prohibition of speech that the defendant “should know” a reasonable
       person would interpret as a threat unconstitutionally chills protected speech.

¶ 62       As previously noted, the offense of stalking includes circumstances in which
       the accused “should know” that his or her speech would cause a reasonable person
       to fear for personal safety or suffer other emotional distress. (Emphasis added.) 720
       ILCS 5/12-7.3(a) (West 2014). Although we held in Relerford that negligence may
       be an appropriate mental state for imposition of criminal liability (Relerford, 2017
       IL 121094, ¶ 22), the question presented here is whether negligence is sufficient to
       satisfy the elements necessary for the first amendment exception for a true threat.
       Because Relerford was limited to the “communicates to or about” portion of the
       statute, we were not required to, nor did we, determine whether the negligent mental
       state may be applied to a charge of stalking based on a true threat. See id. ¶¶ 38-39.

¶ 63       In addressing defendant’s argument, we observe that the Criminal Code of 2012
       defines criminal “negligence” as the “fail[ure] to be aware of a substantial and
       unjustifiable risk that circumstances exist or a result will follow, described by the
       statute defining the offense, and that failure constitutes a substantial deviation from
       the standard of care that a reasonable person would exercise in the situation.” 720
       ILCS 5/4-7 (West 2014). Given our holding that the term “threatens” refers to a
       true threat, which requires proof that the accused be consciously aware of the
       threatening nature of the speech, a mental state that does not require such awareness
       will not suffice. Therefore, we conclude the negligent mental state of “should
       know” in section 12-7.3(a) does not satisfy that standard. This conclusion is
       supported by Elonis, which rejected the government’s argument that the criminal
       negligence standard could be inferred with regard to the federal threat statute at
       issue in that case. See Elonis, 575 U.S. at ___, 135 S. Ct. at 2011-12.

¶ 64      Application of the negligence standard would permit prosecution for protected
       speech that does not constitute a true threat. Accordingly, we hold that the “should
       know” portion of subsection (a) is overly broad and cannot be constitutionally




                                               - 17 -
       applied with regard to a course of conduct that “threatens.”


¶ 65                  3. Reasonable-Person Standard Applied to the Victim

¶ 66      Defendant further claims that subsection (a)(2) is unconstitutionally overbroad
       because it imposes an objective reasonable-person standard with respect to the
       impact of the threatening speech on the recipient. We disagree.

¶ 67       First, we observe that neither Black nor Elonis explicitly rejected a “reasonable
       recipient” standard as wholly incorrect or irrelevant in determining whether speech
       constitutes a true threat. For its part, Black specifically recognized that “a
       prohibition on true threats ‘protect[s] individuals from the fear of violence’ and
       ‘from the disruption that fear engenders.’ ” Black, 538 U.S. at 360 (quoting R.A.V.,
       505 U.S. at 388). As such, the true threat exception is premised on the negative
       effects suffered by the recipient. Consequently, the assessment of whether speech
       constitutes a true threat mandates that the court consider the effect on the listener.
       The analysis in Elonis focused on the issue of which culpable mental state could be
       applied in a prosecution under a federal threat statute and concluded that criminal
       liability cannot be predicated solely on how the defendant’s speech would be
       understood by a reasonable person. Elonis, 575 U.S. at ___, 135 S. Ct. at 2011-12.

¶ 68       In addition, we note that application of the objective standard regarding the
       effect of criminal conduct on the victim is not unusual. See 720 ILCS 5/12-1(a)
       (West 2014) (providing that “[a] person commits an assault when, without lawful
       authority, he or she knowingly engaged in conduct which places another in
       reasonable apprehension of receiving a battery”). Also, the reasonable person
       standard is employed in section (a-3) of the stalking statute, which defendant has
       conceded is constitutional. Id. § 12.7.3(a-3) (imposing criminal liability where the
       accused places the victim “in reasonable apprehension” of unlawful violence); see
       also United States v. Elonis, 841 F.3d 589, 596-97 (3d Cir. 2016) (holding, on
       remand from the Supreme Court, that the government must satisfy an objective
       component requiring proof that the defendant transmitted a communication that a
       reasonable person would view as a threat); United States v. Dillard, 795 F.3d 1191,
       1201-02 (10th Cir. 2015) (recognizing that a true threat may be proven where a
       reasonable recipient would conclude that the communication contained a threat of
       violence). Accordingly, we find that application of the reasonable-person standard



                                               - 18 -
       as to the harm caused by a true threat is not unconstitutionally overbroad.


¶ 69                                  4. Adequately Tailored

¶ 70       Defendant finally asserts that, even if the term “threatens” is construed as a
       “true threat,” the amended stalking statute unconstitutionally violates the first
       amendment because it is not limited to campaigns of stalking that escalate to bodily
       harm or death. In support, he relies on the Supreme Court’s decision in R.A.V.,
       which held that an ordinance banning hate speech violated the first amendment
       despite the fact that it reached only “fighting words.” See R.A.V., 505 U.S. at 381.
       Defendant’s argument is without merit.

¶ 71       In R.A.V., the Supreme Court explained that the recognized categories of speech
       that fall outside the protection of the first amendment may not serve as “vehicles
       for content discrimination unrelated to their distinctively proscribable content.” Id.
       at 383-84. The Court further explained that the first amendment does not allow the
       government to “impose special prohibitions on those speakers who express views
       on disfavored subjects.” Id. at 391. The Court reasoned that the ordinance at issue
       was facially unconstitutional because it was a content-based restriction that
       prohibited only “fighting words” that “insult, or provoke violence, ‘on the basis of
       race, color, creed, religion or gender.’ ” Id. (quoting In re Welfare of R.A.V., 464
       N.W.2d 507, 508 (Minn. 1991)). As a result, the ordinance operated as “actual
       viewpoint discrimination.” Id.

¶ 72       Here, the amended stalking statute proscribes all speech that “threatens,” which
       we have construed as prohibiting only true threats of unlawful violence. See 720
       ILCS 5/12-7.3(a), (a-3), (a-5), (c)(1) (West 2014). The prohibition against true
       threats protect individuals not only from campaigns of stalking that escalate to
       bodily harm or death but also “ ‘from the fear of violence’ and ‘from the disruption
       that fear engenders.’ ” Black, 538 U.S. at 360 (quoting R.A.V., 505 U.S. at 388).
       Also, as opposed to the ordinance at issue in R.A.V., the stalking statute does not
       target only a certain type of true threat or a true threat directed against a particular
       individual or group of individuals. Rather, the basis for the restriction “consists
       entirely of the very reason the entire class of speech at issue is proscribable, [and]
       no significant danger of idea or viewpoint discrimination exists.” See R.A.V., 505
       U.S. at 388. Accordingly, the statute does not suffer from the same constitutional



                                                - 19 -
       infirmity recognized in R.A.V. Therefore, defendant’s reliance on R.A.V. is
       misplaced.

¶ 73       Based on all of the above, we conclude that the term “threatens” in subsection
       (c)(1) is readily susceptible to a limiting construction. See Broadrick, 413 U.S. at
       613. We further hold that the provision must be interpreted to refer only to true
       threats of unlawful violence. Therefore, the “threatens” provision is not
       unconstitutionally overbroad in violation of the first amendment.


¶ 74                               C. Substantive Due Process

¶ 75       Defendant also contends that his conviction for stalking must be reversed
       because the amended stalking statute is facially unconstitutional in violation of his
       right to substantive due process. See U.S. Const., amend. XIV. We do not agree.


¶ 76                                   1. Innocent Conduct

¶ 77       Defendant argues that the “threatens” provision of the amended stalking statute
       violates substantive due process because it criminalizes a vast amount of innocent
       conduct that is unrelated to the statute’s narrow purpose, which the legislature could
       not have intended to fall within its proscriptions. According to defendant, almost
       any knowingly or negligently distressing conduct is a felony where the statute does
       not differentiate between lawful and unlawful conduct.

¶ 78       Criminal statutes that potentially punish innocent conduct not related to the
       statute’s purpose violate the principles of due process. People v. Madrigal, 241 Ill.
       2d 463, 469 (2011) (citing People v. Wright, 194 Ill. 2d 1, 25 (2000)). Therefore,
       substantive due process requires that the proscriptions of a criminal statute be
       clearly defined. People v. Maness, 191 Ill. 2d 478, 483-84 (2000). To satisfy this
       requirement, a criminal statute must be sufficiently definite so that it gives persons
       of ordinary intelligence a reasonable opportunity to distinguish between lawful and
       unlawful conduct. City of Chicago v. Morales, 527 U.S. 41, 56 (1999); Grayned,
       408 U.S. at 108; see also Russell v. Department of Natural Resources, 183 Ill. 2d
       434, 442 (1998).




                                               - 20 -
¶ 79       Defendant’s claim that the statute violates substantive due process because it
       sweeps in innocent conduct parallels his first amendment overbreadth argument,
       which we have previously addressed and rejected. In light of our holding that the
       “threatens” provision relates only to intentionally or knowingly conveyed true
       threats of unlawful violence, that provision cannot be deemed as encompassing
       innocent conduct. See Black, 538 U.S. at 359-60. Consequently, defendant’s
       assertion that the statute does not differentiate between lawful and unlawful conduct
       necessarily fails. See generally People v. Crawford, 2019 IL App (1st) 160184, ¶ 39
       (construing a similar provision in the cyberstalking statute).

¶ 80       Moreover, contrary to defendant’s assertion, the conduct criminalized by the
       statute is directly related to the General Assembly’s goal in adopting the 2010
       amendments. The prohibition against a course of conduct consisting of two or more
       true threats of unlawful violence implements the legislature’s intent to prevent the
       type of conduct that precedes violent attacks against stalking victims. As such, it
       proscribes only speech that engenders fear for personal safety and seeks to preclude
       conduct that historically has led to homicide. See 96th Ill. Gen. Assem., Senate
       Proceedings, May 21, 2009, at 125 (statements of Senator Hutchinson).
       Accordingly, we reject defendant’s claim that the “threatens” provision is unrelated
       to the statute’s narrow purpose.


¶ 81                        2. Vagueness and Arbitrary Enforcement

¶ 82      Defendant further claims that the amended stalking statute violates substantive
       due process because the “threatens” provision of the statute fails to distinguish
       between conduct that is subject to prosecution and conduct that is not. We disagree.

¶ 83        A constitutional challenge based on vagueness is predicated on the notice
       requirement of the due process clause. Grayned, 408 U.S. at 108; Wilson v. County
       of Cook, 2012 IL 112026, ¶ 21. Therefore, a statute may be challenged as vague on
       either of two grounds: (1) it fails to give fair warning to allow innocent people to
       steer clear of its prohibitions or (2) it contains insufficiently clear standards for
       those who enforce it and may lead to arbitrary or discriminatory enforcement. Hill
       v. Colorado, 530 U.S. 703, 732 (2000); Grayned, 408 U.S. at 108-09; Wilson, 2012
       IL 112026, ¶ 21. In addition, a statute is not vague if judicial construction renders
       it sufficiently definite to avoid arbitrary or discriminatory enforcement. People v.



                                              - 21 -
       Einoder, 209 Ill. 2d 443, 450-51 (2004); People v. Taylor, 2019 IL App (1st)
       160173, ¶ 32.

¶ 84       Also, a due process challenge based on vagueness can succeed only where the
       statutory provision is impermissibly vague in all of its applications. Village of
       Hoffman Estates v. The Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494-95
       (1982). Therefore, the determination of whether a statute is unconstitutionally
       vague must be decided on the particular facts before the court, and a litigant whose
       speech is clearly proscribed cannot successfully assert a due process claim of
       vagueness for lack of notice. Holder v. Humanitarian Law Project, 561 U.S. 1, 18-
       20 (2010).

¶ 85       Applying these principles here, we conclude that defendant’s claim of
       unconstitutional vagueness must be rejected. Given that the “threatens” provision
       relates only to intentionally or knowingly conveyed true threats of unlawful
       violence, the statute affords fair warning that allows innocent people to know what
       is prohibited so they can tailor their conduct accordingly. See Morales, 527 U.S. at
       56; Grayned, 408 U.S. at 108. In addition, the prohibition against true threats
       provides sufficiently clear standards to avoid arbitrary or discriminatory
       enforcement. Hill, 530 U.S. at 732; Grayned, 408 U.S. at 108-09. Further, aside
       from his general concerns of overbreadth, which we have addressed and rejected,
       defendant does not identify any other term or condition of the statute that is vague
       or inherently unclear.


¶ 86                  3. Sufficiency of Harm Based on Emotional Distress

¶ 87       Defendant also contends that the amended stalking statute is facially
       unconstitutional in violation of due process where it does not mandate that the
       victim fear for his or her personal safety. According to defendant, the prohibition
       against speech that causes emotional distress is not narrowly tailored to the
       legislature’s goal of preventing conduct that may escalate to physical harm or death.
       Defendant also maintains that speech that is merely distressing, which is not
       actionable under tort principles, does not justify the imposition of criminal liability.
       This contention is unpersuasive.




                                                - 22 -
¶ 88       As we have previously determined, the “threatens” provision of the amended
       stalking statute relates only to true threats of unlawful violence such as bodily harm,
       sexual assault, confinement, or restraint. Fear for personal safety by the victim is
       inherent in an offense based on the communication of a true threat, and fear for
       personal safety necessarily includes emotional distress.

¶ 89       Also, the amended stalking statute defines “emotional distress” as “significant
       mental suffering, anxiety or alarm.” 720 ILCS 5/12-7.3(c)(3) (West 2014). Given
       that definition, we find that the ban on true threats criminalizes only speech that is
       integrally related to the General Assembly’s goal of preventing conduct that may
       escalate to bodily harm or death. See R.A.V., 505 U.S. at 388 (recognizing that a
       prohibition on true threats “protect[s] individuals from the fear of violence, from
       the disruption that fear engenders, and from the possibility that the threatened
       violence will occur”); see also People v. Sucic, 401 Ill. App. 3d 492, 505 (2010)
       (construing the terms “emotional distress” and “mental anguish” in the
       cyberstalking statute).

¶ 90       Defendant further claims that subsection (a) violates substantive due process
       because the resulting fear or emotional distress is measured by the reasonable-
       person standard and not the impact on the actual victim. We reject this assertion for
       the reasons expressed above in finding that the reasonable-person standard is not
       facially overbroad.


¶ 91              4. Claims Regarding Other Conduct Prohibited by the Statute

¶ 92       Finally, defendant argues that the stalking statute violates due process on the
       ground that it permits prosecution for other lawful conduct that does not fall within
       the “threatens” provision in subsection (c)(1). In support, defendant posits several
       hypothetical examples of conduct that he claims would be subject to prosecution
       under the amended statute. Those examples involve lawful, nonviolent conduct
       such as monitoring, surveillance, or distressing speech that does not consist of a
       threat of unlawful violence. This argument is predicated on a misconstruction of
       the purpose and scope of the overbreadth doctrine that is applicable to first
       amendment challenges.




                                               - 23 -
¶ 93       Although a first amendment claim may be based on the speech of others who
       are not before the court, there is no similar doctrine that excuses standing to bring
       a constitutional challenge premised on due process. See Holder, 561 U.S. at 18-20.
       Therefore, outside the limited context of the first amendment, a party who
       challenges a statute on the ground that it violates due process must have standing
       to do so. People v. Ryan, 117 Ill. 2d 28, 33 (1987) (citing Schall v. Martin, 467 U.S.
       253, 268 n.18, (1984)).

¶ 94        Standing requires that the defendant’s conviction in some way results from the
       allegedly unconstitutional aspect of the statute. Minnis, 2016 IL 119563, ¶ 13
       (citing In re M.I., 2013 IL 113776, ¶¶ 32, 34). Generally, a party may not raise, and
       a court will not consider, a constitutional challenge to a statutory provision that
       does not affect that party. Id.; see also People v. Terrell, 132 Ill. 2d 178, 211-12
       (1989) (holding that “[a] person lacks standing to challenge the constitutionality of
       a statute unless he is directly affected by the alleged unconstitutionality” (citing
       People v. Haywood, 118 Ill. 2d 263, 275 (1987))). “This traditional rule reflects two
       cardinal principles: the personal nature of constitutional rights and prudential
       limitations on constitutional adjudication.” Minnis, 2016 IL 119563, ¶ 13 (citing
       Broadrick, 413 U.S. at 610-11).

¶ 95       Here, defendant was not found guilty of monitoring Tinch, placing her under
       surveillance, or for expressing speech that was merely distressing. Because
       defendant’s conviction was not premised on the type of conduct referenced in his
       examples, he lacks standing to challenge the constitutionality of the stalking statute
       on those grounds. Consequently, we decline to address whether the stalking statute
       would violate due process if applied to the conduct or speech described in
       defendant’s hypothetical examples. People v. Rogers, 133 Ill. 2d 1, 9 (1989)
       (recognizing that “ ‘courts will not entertain objections to an allegedly
       unconstitutional feature where the objecting party is not in any way aggrieved’ ”
       (quoting City of Chicago, v. Lawrence, 42 Ill. 2d 461, 464 (1969))).

¶ 96      For all of the reasons explained above, defendant’s argument that his conviction
       must be reversed on due process grounds necessarily fails.




                                               - 24 -
¶ 97                   D. Defendant’s Conviction Is Not Unconstitutional

¶ 98        Having construed the “threatens” provision as referring to a true threat of
        unlawful violence to which the subjective mental state applies, we next consider
        whether defendant’s conviction can stand. See Pope v. Illinois, 481 U.S. 497, 502-
        03 (1987); Chapman v. California, 386 U.S. 18, 23-24 (1967). As set forth above,
        the State presented evidence that defendant “knowingly engaged in a ‘course of
        conduct’ ” by threatening Tinch and her family members with unlawful violence
        and that he knew this “course of conduct” would cause a reasonable person to fear
        for his or her safety and suffer emotional distress. 720 ILCS 5/12-7.3(a)(2), (c)(1)
        (West 2014).

¶ 99        In particular, the State presented evidence that defendant sent numerous text
        messages that included threatening language directed at Tinch and constituted
        “serious expression[s] of an intent to commit an act of unlawful violence” toward
        her. See Black, 538 U.S. at 539. Specifically, defendant sent Tinch messages stating
        that “I can make you suffer”; “start to think more before u talk that s*** will get
        you hurt or killed”; “where the f*** are u Cause rode past in seen lights on there”;
        “You got my blood boiling”; “I swear b*** if a n*** there its g[o]ing to be one”;
        “U them f*** up”; “I hope whoever you got it when I got guns”; “So u called the
        law.” Defendant also sent Tinch a photograph of a gun. Tinch testified that those
        text messages “scared” and “terrified” her.

¶ 100       In addition, Tinch and her mother testified that, while Tinch’s cell phone was
        on speaker mode, they heard defendant threaten to come over and kill Tinch. The
        testimony of Tinch’s mother also established that defendant had threatened to “kill
        everyone with a banger.” Both women were so concerned that they and all the other
        family members who were present immediately left Tinch’s apartment and went to
        her mother’s residence. Furthermore, the police were called while they were in
        transit. Thus, the behavior of Tinch and her mother demonstrated their reasonable
        apprehension with regard to defendant’s threatened behavior.

¶ 101       Moreover, after the police were contacted, an officer met them at Miller’s
        residence, and another officer was dispatched to the area near Tinch’s apartment
        where defendant was apprehended. Thus, the evidence discloses that defendant
        made a threatening phone call to Tinch, which caused her to fear for her safety, and
        that she and her mother feared for the safety of their family members. The police



                                               - 25 -
        took the threats seriously and responded to two separate locations, and defendant
        was aware that the police had been contacted. Based on this evidence, the trial court
        found that Tinch was in fear of defendant and that he acted with both knowledge
        and intent to cause her emotional distress by making several statements, some of
        which threatened death or other bodily harm. In light of the trial court’s factual
        findings, the record affirmatively establishes that defendant’s conviction did not
        rest on the invalid or overly broad portions of the stalking statute. Therefore, the
        State has shown beyond a reasonable doubt that the breadth of the statute under
        which defendant was tried did not contribute to his finding of guilt. Accordingly,
        defendant’s conviction is affirmed.


¶ 102                                    III. CONCLUSION

¶ 103       In sum, we hold that the term “threatens” as used in subsection (c)(1) of the
        stalking statute refers to intentional or knowing threats of unlawful violence that
        the accused knows would cause a reasonable person to suffer significant mental
        suffering, anxiety, or alarm. Given that such threats constitute true threats, they are
        not protected by the right to free speech and may be prohibited without violating
        the first amendment.

¶ 104       In addition, we hold that the prohibition against speech that “threatens,” where
        the accused “should know” the threat would cause a reasonable person to suffer
        significant mental suffering, anxiety, or alarm, does not constitute a true threat and
        is unconstitutionally overbroad in violation of the first amendment.

¶ 105       We further hold that the prohibition against speech that “threatens” does not
        violate due process, and defendant lacks standing to challenge other portions of the
        stalking statute on due process grounds.

¶ 106       We do not decide the constitutional validity of the prohibition against conduct
        that does not involve true threats, and we similarly express no opinion as to the
        constitutionality of the mental state requirements for such conduct.

¶ 107       Finally, we conclude that defendant’s conviction for stalking did not rest on the
        invalid or overly broad portions of the stalking statute. For the foregoing reasons,




                                                - 26 -
        the judgment of the appellate court, affirming defendant’s conviction, is affirmed.


¶ 108      Affirmed.




                                               - 27 -
