                             2019 IL App (2d) 160960
                                  No. 2-16-0960
                          Opinion filed February 28, 2019
______________________________________________________________________________

                                            IN THE

                             APPELLATE COURT OF ILLINOIS

                              SECOND DISTRICT
______________________________________________________________________________

THE PEOPLE OF THE STATE                ) Appeal from the Circuit Court
OF ILLINOIS,                           ) of Winnebago County.
                                       )
      Plaintiff-Appellee,              )
                                       )
v.                                     ) No. 15-CF-2814
                                       )
RORY JOHN SWENSON,                     ) Honorable
                                       ) Fernando L. Engelsma,
      Defendant-Appellant.             ) Judge, Presiding.
______________________________________________________________________________

       JUSTICE SPENCE delivered the judgment of the court, with opinion.
       Justices McLaren and Jorgensen concurred in the judgment and opinion.

                                           OPINION

¶1     In the direct appeal of his disorderly-conduct conviction, defendant, Rory John Swenson,

argues that the State failed to prove him guilty beyond a reasonable doubt and, further, that his

conduct was protected by the first amendment. We affirm.

¶2                                    I. BACKGROUND

¶3     On February 8, 2016, defendant was charged by information with one count of attempted

disorderly conduct (attempt to convey a threat) (720 ILCS 5/8-4(a), 26-1(a)(3.5) (West 2014)),

one count of phone harassment (id. § 26.5-2(a)(2)), and one count of disorderly conduct (id.

§ 26-1(a)(1)). The charges stemmed from a phone call that defendant made on December 7,
2019 IL App (2d) 160960


2015, to the Keith Country Day School (the school) and a conversation that he had with a school

employee.

¶4     The following evidence was presented at defendant’s bench trial. Monica Krysztopa

testified that she was the director of advancement at the school.        On December 7, 2015,

defendant called the school and left a voice-mail message indicating that he wanted to discuss

admissions at the school. He provided a phone number and asked that his call be returned.

Shortly thereafter, Krysztopa returned defendant’s call and spoke with him. Defendant told

Krysztopa that he was interested in enrolling his second-grade son at the school, and according to

Krysztopa, he “immediately went into a battery of questions about the protocol at [the] school for

handling things that were related to guns and shooting.” He also told Krysztopa that he had

previously attended the school but had been kicked out. Krysztopa testified:

       “[H]e basically wanted to know how prepared I would be if he or anyone who arrived on

       our campus with guns? And do we have bullet proof windows at our secretary’s desk?

       Are our doors bullet proof?      Where do our faculty members stand when we do a

       lockdown when there is an intruder in our building? Where do they stand in position in a

       classroom? Do we arm our faculty? How would our faculty defend themselves against

       an armed intruder? There were multiple questions.”

Defendant also mentioned that “the United States was full of socialists and KGB members.” He

asked about truancy laws. He also asked if she “knew the number of *** school shootings that

had taken place in the United States and if [she] knew the success rate of shooters once they were

on campus.” Defendant brought up the San Bernardino shooting, which had happened one week

earlier. Krysztopa testified that defendant stated: “Is [the school] prepared if that would happen

in your campus today?” Krysztopa testified: “He asked me if I was prepared to have the



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2019 IL App (2d) 160960


sacrificial blood of the lambs of our school on our, on my hands, if this were to happen and what

would I do?” Defendant asked, “if he were to show up at the campus with a gun what would be

the protocol of [the] school?” Defendant also asked if the students were given “PEZ dispensers

to defend themselves.” He asked if the teachers carried guns, and he talked about “a number of

guns and their success rate in kill.” He asked how long it would take police to get to the school

in the event of a shooting. At one point, defendant “was talking about when you shoot and kill

children and you’re looking them in the eye and their innocence and the pillows of laying their

heads down at night and then you have a shooter who shoots them in the face, you know, what

does that do for [her] as a school?” He asked her if she would “sniff the pillow.” She stated that

she thought he wanted to know “if [she] would sniff the pillow of their innocence after they’ve

been dead.”

¶5     Krysztopa testified that, based on her conversation with defendant, she believed that

defendant was on the school campus, particularly due to his comment about whether she was

“prepared to have the blood of the sacrificial lambs on [her] hands that day and if [they] were

prepared to handling [sic] something like San Bernardino that day.” In addition, defendant had

stated that he was familiar with the woods around the school campus because he had gone to

school there. Krysztopa described the campus as “very large” with “a lot of trees and wooded

areas behind a neighborhood.”

¶6     Krysztopa testified that she texted the head of the school. She told her that someone was

talking about guns and the safety of the school, and she told her to call 911. The head of the

school called 911 and placed the school on a “soft lockdown.” After an officer had been

dispatched to defendant’s home and two officers were present at the school, the children were

dismissed.



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¶7     Krysztopa testified that her conversation with defendant lasted 15 to 20 minutes.

Defendant ended the conversation by saying that “he had to go.” During the conversation,

Krysztopa took notes. Krysztopa identified her notes as State exhibit No. 2, and she used them

to refresh her recollection while testifying. Krysztopa testified that the conversation left her

“very shook up.”

¶8     On cross-examination, Krysztopa testified that defendant told her that his son was

currently enrolled in public school and that he was looking to move him to her school. He

mentioned that he was concerned about the lack of security at his son’s current school. He never

told her that he had a gun; he asked what would happen if someone went to the school with a

gun. He asked her if she knew the success rate of a “hitter” who showed up at school with a gun,

and he told her that it was 80%. The school went into a soft lockdown because she believed that

defendant was on campus. But defendant never said that he was on campus.

¶9     Rockford police officer Michael Clark testified that, on December 7, 2015, at about 2:30

p.m., he was dispatched to defendant’s apartment to investigate a report of a threatening phone

call that had been made to the school. When he arrived, he telephoned defendant using a phone

number that had been given to him by the dispatchers. No one answered the call, but about a

minute later, defendant exited the building and approached Clark. Clark patted down defendant

and told him that he was there to investigate a threatening phone call that had been made to the

school. Defendant admitted that he had made the call. He told Clark that he had called to find

out about security at the school. He also told Clark that he had asked if the school had armed

security guards and bulletproof glass. Clark placed defendant in the back of his squad car.

Defendant was not placed in handcuffs. At 3:20 p.m., after receiving a phone call from police

officer Mace, Clark arrested defendant.



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2019 IL App (2d) 160960


¶ 10   On cross-examination, Clark testified that defendant cooperated with him at all times.

Defendant told him that he was considering transferring his son to the school and that he wanted

to know about the school’s security. When defendant was arrested, he asked Clark to get his son

from his apartment. Clark asked defendant if there were any weapons in the apartment, and

defendant told him that there were not. Clark went into the apartment to get defendant’s son. He

did not see any weapons in plain view.

¶ 11   At the close of the State’s evidence, defendant moved for a directed finding. The trial

court granted the motion as to the charge of phone harassment because it was Krysztopa who

called defendant. The trial court denied the motion with respect to the remaining charges.

¶ 12   Defendant testified that in December 2015 his son was seven years old and attended a

Rockford public elementary school. At that time, defendant was interested in enrolling him in a

“privatized institution of learning where they weren’t bound by budgeting restrictions used as the

excuse not to protect our children.” He left a voice-mail message with the school. He testified

that his intent in making the call was to enroll his son in the school. When Krysztopa called him

back, he told her why he wanted to enroll him in the school. According to defendant, he asked

first about financial aid and then about security. He testified:

               “And then my other question was what is the security protocol, even about me

       talking to you over the phone, about security protocols? If need be, when I come in to fill

       out the financial aid information, I can talk to you about it then is exactly what I said to

       her.”

Defendant testified that he never threatened anyone at the school. He never said that he was

bringing a weapon to the school. He did not have a firearm owner’s identification card, nor did

he own any weapons.



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2019 IL App (2d) 160960


¶ 13   In making its ruling, the court stated as follows. First, with respect to the credibility of

the witnesses, the court found Clark and Krysztopa to be credible. The court further found that

defendant’s testimony, in parts, was also credible. To the extent that defendant’s testimony

conflicted with Krysztopa’s, the court found Krysztopa’s testimony to be more credible. Next,

with respect to the charge of attempted disorderly conduct, in that defendant attempted to convey

a threat, the court found defendant not guilty. With respect to the charge of disorderly conduct,

however, the court found defendant guilty.           The court found that defendant knowingly

committed an unreasonable act given the statements that he made to Krysztopa and that

Krysztopa was alarmed and disturbed. The court stated:

              “Would you as a parent have the right to know some things about the school?

       Yes, but not in this fashion. The hallmark of this ruling here is reasonableness. We try to

       look at things reasonably and this was just an unreasonable act. Would a reasonable

       person be alarmed and disturbed? Yes. A reasonable person would be alarmed and

       disturbed. And I so find.

              I find that the act was done knowingly. Even if it wasn’t done knowingly in the

       sense of making a threat to the school but if the act was done knowingly and was the act

       an unreasonable act? Yes. The conversation is outlined by a credible witness Krysztopa

       and was unreasonable. It went too far for that.

              So it is disorderly conduct.”

¶ 14   The trial court imposed a sentence of 12 months’ probation. Following the denial of his

motion for a new trial, defendant timely appealed.

¶ 15                                     II. ANALYSIS




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2019 IL App (2d) 160960


¶ 16   Defendant first argues that he was not proved guilty of disorderly conduct beyond a

reasonable doubt, because the State failed to prove that he acted knowingly.

¶ 17   A reviewing court will not set aside a criminal conviction unless the evidence is so

improbable or unsatisfactory that it creates a reasonable doubt of the defendant’s guilt. People v.

Collins, 106 Ill. 2d 237, 261 (1985). When we review a challenge to the sufficiency of the

evidence, “ ‘the relevant question is whether, after viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could have found the essential elements of

the crime beyond a reasonable doubt.’ ”       (Emphasis in original.)     Id. (quoting Jackson v.

Virginia, 443 U.S. 307, 319 (1979)). The trier of fact is responsible for resolving conflicts in the

testimony, weighing the evidence, and determining what inferences to draw, and a reviewing

court ordinarily will not substitute its judgment on these matters for that of the trier of fact.

People v. Cooper, 194 Ill. 2d 419, 431 (2000).

¶ 18   Defendant was charged with violating section 26-1(a)(1) of the Criminal Code of 2012

(Criminal Code) (720 ILCS 5/26-1(a)(1) (West 2014)), which provides as follows:

               “(a) A person commits disorderly conduct when he or she knowingly:

                       (1) Does any act in such unreasonable manner as to alarm or disturb

               another and to provoke a breach of the peace[.]”

To prove defendant guilty beyond a reasonable doubt of disorderly conduct, the State had to

prove that defendant “knowingly” committed an act in an unreasonable manner that he “knew or

should have known” would tend to alarm or disturb another so as to cause a breach of the peace.

People v. Raby, 40 Ill. 2d 392, 397 (1968).

¶ 19   Defendant argues that the State failed to prove that he acted knowingly.               More

specifically, defendant argues that the State was required to prove that he was consciously aware



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that his conduct was practically certain to alarm or disturb another and cause a breach of the

peace. We disagree.

¶ 20   In support of his argument, defendant relies on People v. Kotlinski, 2011 IL App (2d)

101251. Kotlinski involved section 31-1(a) of the Criminal Code, which provided that “[a]

person who knowingly resists or obstructs the performance by one known to the person to be a

peace officer *** of any authorized act within his official capacity commits a Class A

misdemeanor.” (Emphasis added.) 720 ILCS 5/31-1(a) (West 2008). Relying on the statutory

definition of knowingly, 1 this court found that the evidence had to establish that the defendant

was consciously aware that his conduct was practically certain to obstruct. Kotlinski, 2011 IL

App (2d) 101251, ¶ 54.

¶ 21   However, unlike the statute at issue in the present case, the statute at issue in Kotlinski

made clear that the word “knowingly” modified the words “resists or obstructs.” Here, to accept

defendant’s interpretation of the statute, we would have to find that the word “knowingly” in the

introductory clause of section 26-1(a)(1) modifies every element in the clause “[d]oes any act in

such unreasonable manner as to alarm or disturb another and to provoke a breach of the peace.”

720 ILCS 5/26-1(a)(1) (West 2014). But, in Raby, our supreme court made clear that such an

interpretation was not intended. There, the court addressed a claim that the provision reached

conduct with first-amendment protection. It looked to the committee comments to determine the

provision’s breadth, quoting them as follows:



       1
           A person acts knowingly or with knowledge of “[t]he result of his or 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.” 720 ILCS 5/4-5(b) (West 2014).



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       “ ‘Section 26-1(a) is a general provision intended to encompass all of the usual types of

       “disorderly conduct” and “disturbing the peace.” Activity of this sort is so varied and

       contingent upon surrounding circumstances as to almost defy definition.             ***   In

       addition, the task of defining disorderly conduct is further complicated by the fact that the

       type of conduct alone is not determinative, but rather culpability is equally dependent

       upon the surrounding circumstances. *** These considerations have led the Committee

       to abandon any attempt to enumerate “types” of disorderly conduct. Instead, another

       approach has been taken. As defined by the Code, the gist of the offense is not so much

       that a certain overt type of behavior was accomplished, as it is that the offender

       knowingly engaged in some activity in an unreasonable manner which he knew or should

       have known would tend to disturb, alarm or provoke others. The emphasis is on the

       unreasonableness of his conduct and its tendency to disturb.’ ” (Emphasis added.) Raby,

       40 Ill. 2d at 396-97 (quoting Ill. Ann. Stat., ch. 38, ¶ 26-1, Committee Comments (Smith-

       Hurd 1964)).

Thus, although the scienter requirement for the doing of the act in an unreasonable manner is one

of knowingness, the scienter requirement for “ ‘tend to disturb, alarm or provoke’ ” is “ ‘knew or

should have known.’ ” Id. at 397; see People v. Albert, 243 Ill. App. 3d 23, 27 (1993) (because

the defendant “performed her shouting knowingly and also knew or should have known that such

noise likely would disturb people such as the complainant,” she could properly be found guilty of

disorderly conduct).

¶ 22   Given the supreme court’s clear statement, the question is whether the evidence was

sufficient to establish beyond a reasonable doubt that defendant knowingly committed an




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unreasonable act that he knew or should have known would tend to alarm or disturb another so

as to provoke a breach of the peace. In making this determination, we note the following:

       “The types of conduct included within the scope of the offense of disorderly conduct

       almost defy definition. [Citation.] As a highly fact-specific inquiry, it embraces a wide

       variety of conduct serving to destroy or menace the public order and tranquility.

       [Citation.] [C]ulpability *** revolves not only around the type of conduct, but is equally

       dependent upon the surrounding circumstances. [Citation.] Generally, to breach the

       peace, a defendant’s conduct must threaten another or have an effect on the surrounding

       crowd. [Citation.] However, a breach of the peace can occur without overt threats or

       profane and abusive language. [Citation.] In addition, it need not occur in public.”

       (Internal quotation marks omitted.) People v. Pence, 2018 IL App (2d) 151102, ¶ 17.

¶ 23   Here, viewed in the light most favorable to the State, the evidence allowed the trial court

to infer that defendant had the requisite mental state. Although inquiring generally about a

school’s security protocol is not unreasonable in itself, the nature of defendant’s questions and

comments, considered in their totality, clearly exceeded the bounds of reasonableness. For

instance, although defendant never stated that he was on the campus, he let Krysztopa know that

he was familiar with the campus. Defendant conveyed a detailed knowledge of guns and school

shootings, and he asked what would happen “if he were to show up at the campus with a gun.”

(Emphasis added.) Defendant reminded Krysztopa about the recent San Bernardino shooting

and asked, “Is [the school] prepared if that would happen in your campus today?” (Emphasis

added.) Defendant also asked how long it would take police to get to the school in the event of a

shooting. He asked whether there were bulletproof windows at the secretary’s desk and whether

the doors were bulletproof. He asked where faculty members stood in the event of a lockdown



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2019 IL App (2d) 160960


and whether they were armed. Defendant warned Krysztopa that “the United States was full of

socialists and KGB members.”        Defendant also made disturbing comments about shooting

children. Krysztopa testified that defendant talked “about when you shoot and kill children and

you’re looking them in the eye.” He asked her “if [she] would sniff the pillow of their innocence

after they’ve been dead.” He also asked her “if [she] was prepared to have the sacrificial blood

of the lambs of [the] school *** on [her] hands.” Thus, although defendant claims that he “was

only inquiring about the security at the school in relation to his concerns for his son’s safety,” his

comments as a whole were broader, morbid, and clearly inappropriate to his purported objective.

¶ 24   Viewing the evidence in the light most favorable to the State, we find that a rational trier

of fact could have found that defendant knowingly acted unreasonably and knew or should have

known that his act would alarm or disturb Krysztopa so as to breach the peace.

¶ 25   Defendant next argues that, because his words were not lewd, profane, obscene, libelous,

“fighting words,” or “true threats,” they were protected by the first amendment, such that the

disorderly-conduct statute cannot be read as criminalizing them. We disagree. Words that are

expressed “in such an unreasonable manner as to provoke, make or aid in making a breach of

peace [do] not come within the protections of the first amendment.” City of Chicago v. Morris,

47 Ill. 2d 226, 230-31 (1970). Indeed, as Justice Holmes famously observed, one cannot falsely

yell “fire” in a crowded theater. Schenck v. United States, 249 U.S. 47, 52 (1919).

¶ 26   In Morris, our supreme court relied on United States v. Woodard, 376 F.2d 136 (7th Cir.

1967). There, the defendants were convicted of disorderly conduct. Id. at 138-39. One of the

defendants, Ranier Seelig, was convicted for jumping to his feet during a congressional hearing

and shouting, “ ‘Being an American citizen, I don’t have to sit here and listen to these lies.’ ” Id.

at 139. He was warned to keep quiet. Id. When he continued his shouting, he was removed



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2019 IL App (2d) 160960


from the building. Id. The Seventh Circuit rejected Seelig’s argument that his conduct was

protected by the first amendment. Id. at 142-43. The court stated:

       “First amendment rights are ‘not absolute at all times and under all circumstances.’

       [Citation.] Conceding that the defendant Seelig was attempting to voice a protest against

       the *** proceedings, Seelig had no constitutional right to voice his protest in the manner

       he adopted. The first amendment does not guarantee the right of a spectator to shout

       during a legislative hearing so as to disrupt the orderly processes of the proceeding.” Id.

       at 142.

¶ 27   Here, defendant, like Seelig, argues that his conduct was protected by the first

amendment in that he merely “had a conversation with Krysztopa about the security at Keith

School.” This is flagrantly disingenuous. As noted, defendant did not merely engage in a civil

conversation concerning a matter of public interest.       Nor was he “peacefully expressing

unpopular views.” (Internal quotation marks omitted.) Raby, 40 Ill. 2d at 397. Rather, he

subjected Krysztopa to a lengthy interrogation that was disturbing, morbid, and well beyond a

reasonable concern for school security, causing a police response and a school lockdown. As in

Woodard, although defendant’s concern might have been reasonable, his manner of expressing it

was not, and he provoked a breach of the peace. See Pence, 2018 IL App (2d) 151102, ¶ 17 (“a

breach of the peace can occur without overt threats or profane and abusive language” (internal

quotation marks omitted)). It thus was not constitutionally protected.

¶ 28                                   III. CONCLUSION

¶ 29   For the reasons stated, we affirm the judgment of the circuit court of Winnebago County.

As part of our judgment, we grant the State’s request that defendant be assessed $50 as costs for




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2019 IL App (2d) 160960


this appeal. 55 ILCS 5/4-2002(a) (West 2016); see also People v. Nicholls, 71 Ill. 2d 166, 178

(1978).

¶ 30      Affirmed.




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