People v. Diomedes

Illinois Official Reports

Appellate Court

People v. Diomedes, 2014 IL App (2d) 121080

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.

Appellate Court

DANIEL T. DIOMEDES, Defendant-Appellant.

Caption

District & No. Second District

Docket No. 2-12-1080

Filed June 16, 2014

Held On appeal from defendant’s conviction for disorderly conduct based

(Note: This syllabus on sending an e-mail with a threat of violence to the dean of the high

constitutes no part of the school defendant attended, the appellate court held that the

opinion of the court but circumstantial evidence established that defendant wrote the e-mail,

has been prepared by the that the admission of the e-mail into evidence was not an abuse of

Reporter of Decisions discretion, that a rational trier of fact could have found beyond a

for the convenience of reasonable doubt that the e-mail threatening violence, death or bodily

the reader.) harm was knowingly sent to the dean, and defendant’s claim that the

e-mail was merely “an expression of teenage despair,” not a “true

threat,” was rejected where defendant made a prior threat on Facebook

that resulted in his expulsion from high school, the e-mail in the

instant case was sent to one specific recipient, the tenor was serious, it

did not contain any jest, hyperbole or political dissent, it did contain

complaints about defendant’s “needs” and that he wanted the dean

dead, and under the circumstances, a reasonable sender would foresee

that a reasonable recipient would view the e-mail as a serious threat.

Decision Under Appeal from the Circuit Court of Kane County, No. 11-CF-858; the

Review Hon. James C. Hallock, Judge, presiding.

Judgment Affirmed.

Counsel on Alan D. Goldberg and Kathleen Weck, both of State Appellate

Appeal Defender’s Office, of Chicago, for appellant.

Joseph H. McMahon, State’s Attorney, of St. Charles (Lawrence M.

Bauer and Matthew J. Schmidt, both of State’s Attorneys Appellate

Prosecutor’s Office, of counsel), for the People.

Panel JUSTICE JORGENSEN delivered the judgment of the court, with

opinion.

Justices Zenoff and Birkett concurred in the judgment and opinion.

OPINION

¶1 After a bench trial, defendant, Daniel T. Diomedes, was convicted of disorderly conduct

for knowingly transmitting by e-mail a threat of violence directed against a high school dean.

720 ILCS 5/26-1(a)(13) (West 2010). 1 On September 27, 2012, the court sentenced

defendant to 30 months of probation and 365 days of electronic home monitoring. On appeal,

defendant argues that we must reverse his conviction because the evidence was insufficient

to establish that he knowingly transmitted a threat and because the e-mail forming the basis

of his conviction was not authenticated at trial. In addition, defendant argues that, even if the

e-mail contained a threat, it was not a “true threat” and, therefore, his speech was protected

by the first amendment of the United States Constitution. U.S. Const., amend. I. For the

following reasons, we affirm.

¶2 I. BACKGROUND

¶3 On August 8, 2011, defendant was indicted for knowingly transmitting a threat of

violence directed against Susan Shrader, a dean at Geneva High School, in that he

transmitted an e-mail message containing a death threat in violation of section 26-1(a)(13) of

the Criminal Code of 1961 (720 ILCS 5/26-1(a)(13) (West 2010)). Defendant’s motion to

reduce bond was granted with numerous conditions, including that he routinely visit a

psychiatrist and take his prescribed medication. Further, defendant moved to quash his arrest

and suppress evidence on the basis that there was no probable cause for the arrest. The trial

court, specifically Judge James C. Hallock, denied the motion.2

1

The statute has since been amended and renumbered such that section 26-1(a)(13) is now section

26-1(a)(3.5). See Pub. Act 97-1108, § 10-5 (eff. Jan. 1, 2013). Nevertheless, we refer herein to section

26-1(a)(13), as it is the section under which defendant was convicted.

2

We note for context only that, at the hearing on his motion to quash and suppress, defendant

testified that, on April 26, 2011, at 1:30 a.m., he wrote an e-mail to Jodee Blanco from his mother’s

computer. He identified the e-mail, and it was introduced into evidence. Portions of the e-mail read into

evidence are identical to the e-mail presented at trial. The parties did not, however, stipulate that

evidence presented at the suppression hearing was admissible at trial.

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¶4 Judge Hallock also presided over defendant’s bench trial, which commenced on May 24,

2012. Defendant was age 19 at the time of trial (age 18 at the time of the alleged offense).

The State’s first witness was Jodee Blanco, who testified that she is an anti-bullying activist

and author who travels to schools around the world, sharing her personal story of bullying

survival with the goal of motivating change. Blanco is not a trained counselor or

psychologist.

¶5 Prior to April 26, 2011, Blanco presented her anti-bullying program at Geneva High

School. After the program, defendant and other students approached her. Blanco has an

“activist e-mail” address, “jodee@jodeeblanco.com,” that she provides to students and

readers. The e-mail address links to her website, which is monitored by Blanco’s staff. The

staff is trained to handle the communications, but, when there are e-mails of particular

urgency, the staff contacts Blanco. On April 26, 2011, Blanco was in New Orleans to give a

convention address. Her staff called about “a disconcerting e-mail” and read it to her over the

phone. Blanco told the staff to “immediately” forward the e-mail to her, and, once she

received it, she read it on her iPhone. The State showed Blanco exhibit No. 1, which she

identified as “the e-mail that was sent to me at my activist address from [defendant] that

concerned my staff.” The trial court sustained defendant’s objection for lack of foundation.

The State then asked Blanco if the exhibit reflected the e-mail she received in April 2011,

and she replied, “Oh, yes, that’s the one,” and confirmed that it was “exactly the same.” The

State moved to admit the e-mail, but the court sustained defendant’s hearsay objection.

Ultimately, the State again showed Blanco the exhibit and asked her what e-mail address the

e-mail was sent to; she confirmed that it was sent to her activist e-mail address, which she

provides to “anyone who needs to reach out to [her].” Blanco confirmed that the e-mail was

in the same form as when she received it on April 26, 2011. Defendant objected on the bases

of lack of foundation, the best-evidence rule, and hearsay. The court ruled, “at this time, it is

admitted. It’s admissible. I think what you are saying goes more to the weight, so it’s

admitted over objection.”

¶6 Exhibit No. 1 reflects that it is “From: dan daman.” The “sent” line reflects “Sent:

Tuesday, April 26, 2011 1:37 a.m.” The subject line reflects “Subject: Hey Jodee, this is Dan

Diomedes from Geneva.” The email is sent to “jodee@jodeeblanco.com” and copies

“thetetrisking@yahoo.com.” The e-mail states:

“Hi Jodee, It’s been awhile, I can’t believe it’s been this long, but I can’t take it

anymore, I wanna die. There was something I never told you in the last e[-]mail I sent

you. I was expelled from Geneva High School for posting a threat on my Facebook.

Some girl that use [sic] to be my friend called the cops on me. I wasn’t gonna do

anything, I just wanted someone to care. The cops took my computer, and I’ve been

in the alternative school since April of last year. I’ve made friends with the other kids

who are bullied there, nobody messes with me because I’m not afraid of anything. A

lot of progress between kids has increased, and my teachers say they view me as a

leader. But, I can’t do it, my family is useless low life shit, my teachers don’t help

me, they just tell me how to live with it. I’m talking about being in this alternative

school. I was raised by low life people, then I AM THE ONE WHO HAS TO END

UP IN A SPECIAL SCHOOL? NOT ONLY THAT, THE DEAN AT GENEVA

NEVER DID ANYTHING WHEN I TOLD HER HOW KIDS TRIED TO HIT ME

WITH THEIR CARS, THEY THREW SHIT AT ME, AND SHOT ME WITH

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AIRSOFT GUNS, WHICH LEFT MARKS ON MY FACE. I’m so well[-]behaved at

this alternative school, that they tried to get me out, which RARELY happens, so it

was a big deal, Geneva said they didn’t want me back. I can’t take this alternative

school environment, I can’t stand having to empty my pockets every morning, I can’t

stand being escorted every time I have to go to the bathroom or something like that.

They have time[-]out rooms, mostly everyone at the school has been [in] them. I’ve

been there a year, and never once have I had to go in one. I want out or I will die, the

place is suffocating me. I NEED a regular school environment. I was in the

counselor’s office the other day because I was writing suicide notes, a will, and who I

was going to kill. I planned not to hurt any kids, I just want the dean at Geneva, my

grandparents, and my mother dead. I’m the one who has suffered my whole life, now

I want them to suffer.” (Emphases in original.)

¶7 Blanco testified that, when she read the e-mail, she felt “[c]oncern for the safety of

[defendant’s] grandparents, his mother and the dean; compassionate, compassionate concern

for [defendant] because the demeanor of the e-mail led [her] to believe that he was troubled

and needed support.” After reading the e-mail, Blanco instructed her staff to telephone the

principal at Geneva High School and to link Blanco into the conversation. She spoke to the

principal “in the hopes that he would have the address of [defendant’s] family so they could

be alerted to get out of the house.” Next, Blanco was linked into a phone call with the police,

and she asked them to dispatch units to defendant’s residence and to Mades-Johnstone Center

in St. Charles, the alternative high school where defendant was a student. Finally, Blanco

contacted Mades-Johnstone.

¶8 Blanco testified that, although she is not a trained psychologist, she follows guidelines to

protect herself from potential liability. Accordingly, when the principal of Mades-Johnstone

had defendant and the police in his office, Blanco told the police that she was concerned

about defendant and she asked that he be taken to a hospital where he could be observed and

kept from hurting himself or others. She also spoke with the principal and with defendant,

who was “sad, frightened, resolved.” According to Blanco, in that conversation, defendant

threatened his mother and grandparents. She asked defendant if he understood that many

lives, including his own, would change if he killed his mother and grandparents and if he

“underst[ood] the finality of what that would mean.” Defendant responded, “yes.”

¶9 The State next called Ginger Rohde, one of defendant’s teachers at Mades-Johnstone.

Rohde testified that, on or about April 26, 2011, defendant was working at a computer

station. Rohde approached defendant to tell him that “somebody had come for him,” and she

saw at his station a folder that he used in the classroom. She took the folder and gave it to the

police on April 26, 2011. The folder was introduced as exhibit No. 2. Rohde identified it and

briefly described it as containing “some writings that were made that talked about a will,

things that would be given away. It talked about kids suffering. It talked about [defendant]

not belonging at our school, feeling that he didn’t belong as one of our students. Talking

about getting out.” Over defendant’s relevance objection, the exhibit was admitted into

evidence.3

3

It is unclear whether this folder contains the will and list that, according to the e-mail, caused

defendant to be sent to the counselor’s office. In any event, this court has reviewed the folder. On its

front cover, it states, “I need to get out of Mades,” “I shouldn’t fucking be there in the fucking first

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¶ 10 Finally, Detective Brad Jerdee testified that he is the high school liaison officer

responsible for monitoring criminal activities in the area high schools. On April 26, 2011,

Jerdee learned of an e-mail that had been forwarded to Geneva High School by Blanco.

When asked if he knew who sent the e-mail to Blanco, Jerdee replied that it was defendant.

Defendant objected, arguing that there was no proof who wrote the e-mail; the court

overruled defendant’s objection. Jerdee continued that there were, at that time, three deans at

Geneva High School: Mike Kelly, Reed Allison, and Susan Shrader. Jerdee identified exhibit

No. 1 as the e-mail that defendant wrote to Blanco and that was forwarded to Jerdee’s

attention. (Defendant’s objections were again overruled.) After reviewing the e-mail, Jerdee

advised Shrader of the “threat in the e-mail” and notified Mades-Johnstone of the “severe

threat” received. Jerdee observed Shrader’s demeanor after she read the e-mail. She was

visibly upset, nervous, “shaky,” uneasy, and fearful. Jerdee testified that defendant was

formerly a student at Geneva High School, but had been “outplaced” (i.e., expelled) to

Mades-Johnstone.

¶ 11 Defendant was taken to Delnor hospital. Jerdee and another officer went to the hospital,

where defendant was in the emergency room speaking with a social worker. The social

worker asked the officers if they wished to speak with defendant, Jerdee replied that they did,

and she left the room. Defendant told the officers:

“that he did in fact send an e-mail to Jodee Blanco indicating that he was fed up with

his current school, situation, and that–

***

And that he couldn’t take any more of that situation, which prompted him to write

the e-mail. He said that he was frustrated and wanted his parents, his grandparents,

and Dean Shrader to suffer. He specifically stated in the e-mail that he wanted them

to die.”

In their meeting, Jerdee showed defendant the e-mail he had received, and defendant

“alluded” that he was angry with Shrader because she placed him in the alternative school.

¶ 12 Defendant was next taken to St. Joseph’s hospital in Elgin. Jerdee received a warrant for

defendant’s arrest, and on May 3, 2011, defendant was transported from the hospital to the

police station. After he received Miranda warnings, defendant spoke with Jerdee and another

officer about how he was feeling and the medications he was taking. They discussed the

e-mail, and “he again told us that he knew that–he felt that it was inappropriate in sending it;

however, he was frustrated at the time and that’s why he sent that e-mail.” Defendant

place,” and, repeatedly, “Get me out,” “Let me out,” and “I can’t take it.” In addition, it states on the

front, “They tried to get me out of New Directions, Geneva said Fuck you, they think it’s for the best

that I stay at Mades. No. They were wrong. Keeping me there is destroying my mental state of being. I

can’t stay there, wish me luck that the proper precautions are taken to get me out.” The words “kill,”

“suicide,” “death,” “murder,” and “blood and guts” are written on the front cover. In addition, the front

cover contains several drawings, including one that reflects a person with a gun shooting someone in a

window or doorway, and another that shows a building labeled “Mades” with what appears to be a

bomb near it. Inside, the folder contains “My Will,” which lists to whom various items should be given.

Further, there is a drawing of a person holding a gun to his head. Finally, there are two paragraphs of

writing, discussing burning down Mades, but saving the kids and committing suicide, as well as

comments critical of defendant’s mother and grandparents.

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voluntarily provided a written statement, which included, “I wrote this e[-]mail because I was

seeking help for depression, anger, and suicidal thoughts, and I had nobody around to talk

about it with. I sent an e[-]mail to Jodee Blanco with words like ‘I want to die,’ ‘I want my

family dead’ ... things like that, but I thought Jodee would understand. Problem was,

somebody else read the e[-]mail first, and had to take precautions.” Further, defendant wrote,

“[b]efore writing this letter, I found out that the dean at Geneva was shocked that I wanted

her dead, but I also found out that she couldn’t tell me about any other kids[’] consequences,

even though she did everything that she could to help me. If she was here, I would look her

in the eyes, and apologize for worrying her.” The statement was received into evidence

(exhibit No. 3).

¶ 13 The State rested. Defendant moved for a directed finding, arguing that the e-mail was not

proven to have come from him; that the e-mail and folder reflected only his will, wishes, and

private thoughts, not a threat; and that, even though his thoughts were disturbing, the State

did not establish any intent to transmit a threat. The court denied defendant’s motion for a

directed finding. Defendant presented no evidence. The court found defendant guilty of

disorderly conduct. It denied defendant’s motion to reconsider. The court sentenced

defendant to time served (101 days in jail), assessed various fines and fees, and imposed 30

months of probation, “the first 12 to be intensive.” Further, it ordered defendant to continue

his psychiatric treatment and to remain on GPS monitoring for the first 12 months of

probation. Defendant appeals.

¶ 14 II. ANALYSIS

¶ 15 A. Sufficiency of the Evidence

¶ 16 Defendant argues first that the evidence was insufficient to sustain his conviction

because: (1) considering the e-mail’s content and to whom it was sent, it did not contain a

knowingly made death threat; and (2) the e-mail was inadmissible as substantive evidence

because the State failed to authenticate it as having been authored by defendant.

¶ 17 We first address defendant’s second argument. Defendant argues that, although the court

initially sustained his foundation objection, its subsequent admission of the exhibit was

erroneous because the State did not present evidence to show that he authored and sent the

e-mail. Defendant notes that, although the e-mail’s subject line states “Hey, Jodee, this is

Dan Diomedes from Geneva,” that statement is hearsay and could have been written by

anyone. Further, defendant notes that the e-mail purported to be from “dan daman,” which is

not his name, and that the State did not provide any evidence that the e-mail was generated

from his e-mail address. Accordingly, defendant argues, because the State did not directly

link to him the Internet Protocol (IP) address from which the e-mail was sent, and because

the circumstantial evidence was inadequate to authenticate the e-mail, it was inadmissible

and his conviction must be reversed. We disagree.

¶ 18 We review a trial court’s admission of evidence for an abuse of discretion. People v.

Caffey, 205 Ill. 2d 52, 89 (2001). An abuse of discretion occurs only when no reasonable

person would adopt the court’s view. Id. Here, defendant is correct that the evidence did not

directly establish that he sent the e-mail. However, as defendant acknowledges, a document

can be authenticated through circumstantial evidence. See, e.g., People v. Towns, 157 Ill. 2d

90, 104 (1993) (a written document can be authenticated through circumstantial evidence,

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such as by “appearance, contents, and substance”). Here, viewing the evidence in its totality,

we cannot conclude that the trial court abused its discretion in admitting the e-mail.

¶ 19 The e-mail reflects, in the subject line, “this is Dan Diomedes from Geneva.” While this

is clearly insufficient, alone, to establish that defendant was in fact the author, the trial court

could certainly consider that subject line when viewing the evidence as a whole. Further, the

body of the e-mail discussed that the author: (1) was expelled from Geneva High School for

posting a threat on Facebook and was sent to an alternative school; (2) was upset at the

Geneva High School’s dean and described “her” as not addressing bullying; (3) wanted to

return to Geneva High School, but the school refused to allow it; (4) was “suffocating” and

unhappy in the alternative school environment; (5) had recently written suicide notes, a will,

and a list of people whom he or she “was going to kill”; and (6) was not going to hurt any

kids, but “wants” dead and “to suffer” the dean at Geneva, his or her grandparents, and his or

her mother. Much of that information was also written on the folder that was confiscated

from defendant and admitted into evidence at trial. (Indeed, in his appellate brief, defendant

agrees that the “writings on the inside and outside of the folder mirror the remarks that

[defendant] conveyed to Blanco in the email.”) Accordingly, the trial court could reasonably

have found that the person who wrote the e-mail was the same person who wrote the notes on

the folder. Finally, in his voluntary written statement, defendant stated that he wrote “this

e-mail” (emphasis added) to Blanco, which included phrases such as “I want to die” and “I

want my family dead,” and he further stated that he learned that Shrader was shocked that he

wanted her dead. Jerdee testified that defendant wrote the voluntary statement while being

interviewed about the e-mail that Blanco received and forwarded to the police. Moreover,

Jerdee testified that, in his interview with defendant at the hospital, defendant admitted to

having written the e-mail.

¶ 20 Contrary to defendant’s assertion, the cases he cites do not stand for the proposition that,

to connect the e-mail to him, the State was “obliged” to demonstrate that the IP address from

which the e-mail was sent was connected to him. While, in those cases (both of which

concerned computer-related crimes, such as computer tampering and electronic harassment),

the State did offer IP addresses connected to the defendants, the courts did not hold or even

suggest that an e-mail must be authenticated through an IP address or that circumstantial

evidence is insufficient. See, e.g., People v. Kucharski, 2013 IL App (2d) 120270, ¶¶ 10-12;

People v. Janisch, 2012 IL App (5th) 100150, ¶¶ 8-9. Indeed, Illinois Rule of Evidence

901(b)(4) (eff. Jan. 1, 2011) illustrates that, where a document’s contents, in conjunction with

other circumstances, reflect distinctive characteristics, the authentication requirement may be

deemed satisfied. In sum, the circumstantial evidence here was sufficient to establish that

defendant wrote the e-mail, and the trial court did not abuse its discretion in admitting the

e-mail into evidence.

¶ 21 Next, defendant argues that the evidence was insufficient to establish a knowing threat.

The statute provides:

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

***

(13) Transmits or causes to be transmitted a threat of destruction of a school

building or school property, or a threat of violence, death, or bodily harm directed

against persons at a school, school function, or school event, whether or not school

is in session.” 720 ILCS 5/26-1(a)(13) (West 2010).

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Defendant argues that the State therefore needed to prove both that he knowingly sent the

e-mail and that, when he sent the e-mail, he possessed a conscious awareness that he was

transmitting a threat. Defendant argues that the State failed to do so here, where the evidence

reflects that he sent the e-mail to a third party to express frustration with his situation and

where, in his written statement, he explained that he sent the e-mail seeking help for

depression and because he thought that Blanco would understand his feelings. Defendant

argues that no rational fact finder could find beyond a reasonable doubt that he knowingly

transmitted a threat directed against Shrader.

¶ 22 The State disagrees that it needed to establish anything more than that defendant

knowingly sent a message that he knew or should have known was a threat. The State relies

on People v. Raby, 40 Ill. 2d 392, 397 (1968), where the court held that a defendant is guilty

of disorderly conduct if he or she knowingly committed an act in an unreasonable manner

and “he [or she] knew or should have known [that it] would tend to disturb, alarm or provoke

others.” However, the court in Raby considered a section of the disorderly conduct statute,

different from the one at issue here, that contemplates the state of mind of both the actor and

those affected by the actor’s conduct. Id. at 395; see 720 ILCS 5/26-1(a)(1) (West 2012)

(formerly Ill. Rev. Stat. 1967, ch. 38, ¶ 26-1(a)(1)) (“[a] person commits disorderly conduct

when he knowingly *** does any act in such unreasonable manner as to alarm or disturb

another and to provoke a breach of the peace”). Accordingly, the Raby court explained that

“knowingly,” which describes a “conscious and deliberate quality which negatives accident

or mistake,” requires that the actor must knowingly commit the act. However, as to how that

act might affect another (i.e., alarm or disturb), the lesser standard of “knew or should have

known” applies. Raby, 40 Ill. 2d at 395, 397.

¶ 23 Here, in contrast to Raby, the disorderly conduct provision at issue does not contemplate

a state of mind for those who might be affected by the actor’s conduct. Rather, as relevant

here, the provision requires only that the actor knowingly transmit a threat of violence, death,

or bodily harm directed against persons at a school. 720 ILCS 5/26-1(a)(13) (West 2010).

Accordingly, we interpret the knowledge requirement to apply to all elements of subsection

(a)(13), such that the actor not only must knowingly transmit something, but must also know

that what is being transmitted is a prohibited threat. Indeed, other statutes, wherein

“knowingly” appears only at the statute’s beginning, have been interpreted to apply the

“knowingly” mens rea to all subsequent elements of the crime. See, e.g., People v. Frieberg,

147 Ill. 2d 326, 347 (1992) (interpreting Controlled Substances Act)4; People v. Hernandez,

2012 IL App (1st) 092841, ¶ 31 (interpreting Identity Theft Law)5; see also 720 ILCS 5/4-3

4

Specifically, where the statute provided that “any person who knowingly brings or causes to be

brought into this State for the purpose of manufacture or delivery or with the intent to manufacture or

deliver a controlled *** or counterfeit substance *** is guilty of controlled substance trafficking” (Ill.

Rev. Stat. 1991, ch. 56½, ¶ 1401.1 (now 720 ILCS 570/401.1(a) (West 2012)), knowledge was required

both for bringing the substance and for the end or aim of that activity. Frieberg, 147 Ill. 2d at 347.

5

Specifically, where the statute provided that “[a] person commits the offense of identity theft when

he or she knowingly: (1) uses any personal identifying information or personal identification document

of another person to fraudulently obtain credit, money, goods, services, or other property” (720 ILCS

5/16G-15(a)(1) (West 2008)), knowledge was required both for the use of the information and for the

information’s belonging to another person. Hernandez, 2012 IL App (1st) 092841, ¶ 31.

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(West 2012) (“If the statute defining an offense prescribed a particular mental state with

respect to the offense as a whole, without distinguishing among the elements thereof, the

prescribed mental state applies to each such element.”). Accordingly, here, because

“knowingly” is placed at the beginning of the statute without further distinction within the

provision, we agree with defendant that, for purposes of section 26-1(a)(13), the State was

required to prove beyond a reasonable doubt that defendant knowingly, i.e., consciously and

deliberately, transmitted a threat directed against Shrader, not merely that defendant should

have known he was transmitting a threat.

¶ 24 Nevertheless, when a defendant challenges the sufficiency of the evidence supporting his

or her conviction, the inquiry is 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. Collins, 214 Ill. 2d 206, 217 (2005). It is the

function of the trier of fact to weigh and resolve conflicts in the evidence and draw

reasonable inferences therefrom. People v. Williams, 193 Ill. 2d 306, 338 (2000). Here, we

conclude that a rational trier of fact, viewing the evidence in the light most favorable to the

State, could have found beyond a reasonable doubt that defendant knowingly transmitted an

e-mail that he knew contained a threat directed against Shrader.

¶ 25 Defendant argues that, because he was seeking help for his depression and intended his

statements to Blanco to remain private, he did not knowingly transmit a threat directed

against Shrader. Defendant concedes that the statute does not require that the threat be

directly communicated to the subject of the threat. However, he asserts that the fact that he

sent the message to Blanco nevertheless reflects that his goal was to elicit sympathy, not to

intimidate the dean. Finally, he argues that a threat does not exist without evidence of a

“present determination” to injure and that, here, the e-mail reflected only a past

determination to injure. We disagree.

¶ 26 We acknowledge that the e-mail can be read, in part, as defendant’s attempt to express to

Blanco his depression and frustration with his life and school environment. However,

defendant’s e-mail did not express only emotions of frustration and anger. Defendant did not

simply lament his life or even directly request any help. Rather, after expressing frustration

and anger, the e-mail abruptly ended with a statement that defendant “wants” (present tense)

the dean “dead” and for her “to suffer.” Defendant argues that wanting a person dead is not

illegal, but the sentence immediately preceding defendant’s wish explained that defendant

had been writing a list of people whom he was going to kill, with the final sentence clarifying

that he was not going to hurt kids, but, rather, he “wants” (again, present tense) the dean and

members of his own family “dead” and “to suffer.” Viewing the evidence in the State’s

favor, a reasonable fact finder could conclude that, when read in its entirety, the message

seeking sympathy from Blanco also included a present threat of injury or death to those

specified, including Shrader.

¶ 27 Further, the e-mail itself provided sufficient evidence from which the trier of fact could

have rationally concluded that, given his background, defendant knew that he was

transmitting a threat. The e-mail summarized two previous instances wherein defendant’s

threats or suicidal and/or violent writings resulted in meaningful consequences. First,

defendant wrote in the e-mail that, when he posted a threat on Facebook, he was expelled

from Geneva High School. Second, defendant wrote in the e-mail that, when he created a will

and a list of people whom he planned to kill, he was sent to the counselor’s office. As such, a

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rational trier of fact could conclude that defendant knew that, when he sent the e-mail in the

middle of the night (at 1:37 a.m.) to Blanco (who, we note, was not an advisor, counselor, or

psychologist, or anyone with whom defendant could legitimately expect a confidential

relationship), lamenting his life, describing a list of people whom he was going to kill, and

stating that he presently wants the dean “dead” and “to suffer,” he was transmitting a threat

against Shrader. In sum, given defendant’s history (as provided within his own e-mail), we

conclude that a reasonable fact finder could have found beyond a reasonable doubt that

defendant knowingly transmitted a threat of violence, death, or bodily harm directed against

Shrader.

¶ 28 B. First Amendment Issue

¶ 29 Next, defendant argues that his disorderly conduct conviction must be reversed because

his e-mail to Blanco was not a “true threat” and, therefore, it constituted speech protected by

the first amendment to the United States Constitution.

¶ 30 The first amendment prevents government from proscribing speech because of

disapproval of the expressed ideas. R.A.V. v. City of St. Paul, 505 U.S. 377, 382 (1992). As

the disorderly conduct provision at issue here makes criminal a certain form of speech, it

must be interpreted within the confines of the first amendment. See, e.g., People v. Redwood,

335 Ill. App. 3d 189, 192 (2002). However, the first amendment permits restrictions on some

forms of speech, including “true threats,” which:

“encompass those statements where the speaker means to communicate a serious

expression of an intent to commit an act of unlawful violence to a particular

individual or group of individuals. [Citations.] The speaker need not actually intend to

carry out the threat. Rather, a prohibition on true threats 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.”

(Internal quotation marks omitted.) Virginia v. Black, 538 U.S. 343, 359-60 (2003).

See also People v. Bailey, 167 Ill. 2d 210, 227-28 (1995) (true threats are not entitled to first

amendment protection); People v. Sucic, 401 Ill. App. 3d 492, 502 (2010) (same). If a

defendant establishes that his or her speech did not constitute a true threat, the appropriate

remedy would be to reverse his or her conviction of disorderly conduct. See, e.g., Sucic, 401

Ill. App. 3d at 502-03. We review de novo whether a statement qualifies as protected speech

under the first amendment. Duncan v. Peterson, 408 Ill. App. 3d 911, 918 (2010).

¶ 31 Defendant argues that we must look to the context of the e-mail to determine whether it

contained a “true threat.” Defendant asserts that “true threats” are statements that, in light of

surrounding circumstances, “a speaker would reasonably foresee that a listener would

reasonably interpret as a serious expression of a purpose to inflict harm, as distinguished

from hyperbole, jest, innocuous talk, expressions of political views, or other similarly

protected speech.” In re Douglas D., 2001 WI 47, ¶ 34, 243 Wis. 2d 204, 626 N.W.2d 725

(citing State v. Perkins, 2001 WI 46, ¶ 29, 241 Wis. 2d 141, 626 N.W.2d 762). Defendant

asserts that many jurisdictions, including the Seventh Circuit Court of Appeals, focus on

what a “reasonable sender” would foresee the recipient would understand. See, e.g., United

States v. Fuller, 387 F.3d 643, 646 (7th Cir. 2004) (looking at how a “reasonable person

would foresee that the statement would be interpreted”). Accordingly, defendant argues that,

because it is evident from the surrounding circumstances that he meant only to share his

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“dark thoughts,” a speaker in his position would not reasonably foresee that Blanco and

others would interpret the e-mail as a serious threat of harm. Finally, defendant asserts that,

because the statements in his e-mail were ambiguous, as opposed to reflecting a specific plan

to commit harm, his expression is similar to other cases where courts have held that “dark”

communications were protected by the first amendment. See, e.g., In re George T., 93 P.3d

1007, 1009, 1016-18 (Cal. 2004) (student adjudged delinquent did not communicate a true

threat where he joked about the Columbine shootings and shared with several students a

poem entitled “ ‘Dark Poetry,’ ” which stated, “ ‘I am Dark, Destructive, & Dangerous. I slap

on my face of happiness but inside I am evil!! For I can be the next kid to bring guns to kill

students at school. So parents watch your children cuz I’m BACK!!’ ”; court found that the

poem was ambiguous and equivocal and that there were no circumstances reflecting any

animosity between the writer and other students with whom he shared the poem and no

conduct to suggest the immediate prospect of execution of a threat to kill); J.S. v. Bethlehem

Area School District, 807 A.2d 847, 851, 859-60 (Pa. 2002) (student expelled from school

for creating a website entitled “ ‘Teacher Sux,’ ” which included a request for $20 to pay for

a hitman, included a drawing of the teacher with her head cut off and blood dripping, and had

a page entitled “ ‘Why Should She Die?’ ”; court found that there was no true threat because

the totality of circumstances reflected that the threat was not communicated directly to the

teacher, there was no evidence that the student had made similar statements to the teacher on

other occasions, the website contained cartoon characters and compared the teacher to

Adolph Hitler, and it was unclear whether the teacher had reason to believe that the student

had more propensity to engage in violence than any other student his age); Douglas D., 2001

WI 47, ¶¶ 1-10, 243 Wis. 2d 204, 626 N.W.2d 725 (student was adjudged delinquent for

writing a story wherein the protagonist cut off the teacher’s head and the teacher, upon

reading it, interpreted the story as a threat; court found that the story was not a true threat

because there was no evidence that the student had threatened the teacher in the past or that

the teacher believed the student had propensity to commit violence and, further, the story

contained hyperbole and attempts at jest and did not contain any language directly addressed

to the teacher). Defendant notes that the recipients in the aforementioned cases were all

frightened by the expressions of speech but that, nonetheless, the expressions did not equate

to “true threats.”

¶ 32 The State agrees that context must be considered when assessing whether a statement

constitutes a true threat, but it asserts that most courts use an objective test to determine “if

an ordinary reasonable recipient who is familiar with the context … would interpret [the

statement] as a threat of injury.” (Internal quotation marks omitted.) United States v. White,

670 F.3d 498, 507 (4th Cir. 2012). The State notes that here an objective reasonable

recipient, i.e. Blanco, who was familiar with the context of the e-mail, interpreted the

statement as a threat of injury. In addition, the State notes that defendant’s statement was also

taken seriously by the police and the high school and that the e-mail itself referred to a prior

threat. The State concludes that, because reasonable recipients interpreted the e-mail as a

serious threat, defendant’s e-mail was not protected. It further notes that the cases cited by

defendant are distinguishable, and it asserts that this case is more like In re A.S., 2001 WI 48,

¶ 3, 243 Wis. 2d 173, 626 N.W.2d 712, where the court found that a minor had made true

threats when he told other children that he was going to kill everyone at a middle school and

make people suffer, he made specific threats against several individuals (including that he

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would “ ‘hang,’ ” “ ‘rape,’ ” and “ ‘make [them] suffer’ ”), and there was nothing in the

statements or other context to suggest that the minor was engaging in jest, hyperbole, or

political dissent. The State contends that defendant’s e-mail constituted a true threat that does

not fall within first amendment protections.

¶ 33 We must first address the suggested discrepancy between defendant’s position, that our

review should focus on what a reasonable speaker in his position would foresee, and the

State’s position, that we should focus objectively on how a reasonable recipient would

interpret the communication. In essence, it appears that both are partially correct. While there

exists a split of federal authority on whether we should focus on the “reasonable sender” of

the communication or the “reasonable recipient” of the communication (see White, 670 F.3d

at 509-10 (collecting cases)), both defendant and the State are asking us to view the issue

from an objective, not subjective, approach. For example, in White, the case upon which the

State relies, the court noted that its approach, which focuses on the reasonable recipient, is an

objective one. Id. at 510. In Fuller, a case upon which defendant relies, the Seventh Circuit

noted that it applies an objective “true threat” test that asks whether “a reasonable person

would foresee that the statement would be interpreted by those to whom the maker

communicates the statement[, i.e., the recipient (not necessarily the subject of the threat),] as

a serious expression of an intention to inflict bodily harm.” (Internal quotation marks

omitted.) Fuller, 387 F.3d at 646. In United States v. Parr, 545 F.3d 491, 499-500 (7th Cir.

2008), the Seventh Circuit discussed that there also exists a split of authority on whether

(based on Black’s language that true threats encompass statements wherein the speaker

means to communicate a serious threat to harm) a subjective element was introduced into the

analysis or whether the traditional, objective reasonable-person test should continue to be

applied. In doing so, however, it described the traditional objective test as asking whether a

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

threat (the “objective ‘reasonable speaker’ ” test) or, alternatively, whether a reasonable

recipient would interpret the statement as a threat (the objective “ ‘reasonable recipient’ ”

test). Id. at 499. The Parr court stated that “[t]his circuit has not yet addressed the issue,” and

it described its former decision in Fuller as merely “a post-Black true threats case applying,

without reference to Black, the traditional objective ‘reasonable person’ test.” Id. at 500.

¶ 34 Accordingly, it appears that the Seventh Circuit’s approach has been, and remains, an

objective one, which allows evaluation of the speaker’s communication under either the

reasonable-speaker or the reasonable-recipient test. Further, although courts in this state have

not explicitly decided the issue, the approach also appears to be objective. For example, in

Sucic, the defendant relied on Black to argue that a subjective approach should be applied to

determine whether his statements amounted to true threats. Sucic, 401 Ill. App. 3d at 503. In

addressing that claim, the court noted that, while there has been a federal split of authority

interpreting Black, Illinois courts have found that the term “threat” implies generally that the

expression has a “reasonable tendency to create apprehension that its originator will act

according to its tenor.” (Internal quotation marks omitted). Id.6 This definition suggests that

6

Interestingly, the Sucic court (which was considering the issue of threats as related to a

cyberstalking statute) ultimately determined that it did not need to resolve whether Black added a

subjective-intent requirement to the test for true threats, because the defendant had placed his

subjective intent at issue by arguing that his statements were merely “spiritual,” not threatening. Sucic,

401 Ill. App. 3d at 504. The trial court, as fact finder, rejected the defendant’s argument and determined

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an objective, not a subjective, approach continues to apply. See also People v. Peterson, 306

Ill. App. 3d 1091, 1102-03 (1999) (considering threats under the intimidation statute and

rejecting the defendants’ argument that their speech was protected, noting that “ ‘punishable

threats’ ” are those that have a “reasonable tendency to create apprehension,” which is

“essentially an objective determination”).

¶ 35 Therefore, it appears that neither the objective reasonable-speaker nor the objective

reasonable-recipient approach is foreclosed from our consideration. Indeed, in our view, the

reasonable-speaker test, by requiring consideration of how others might interpret the

communication, essentially subsumes or encompasses the reasonable-recipient test.7 In any

event, even applying, per defendant’s request, the reasonable-speaker approach, we conclude

that the evidence here is such that a speaker would reasonably foresee that a listener would

reasonably interpret the communication as a serious expression of intent to harm.

¶ 36 We acknowledge first that, when compared with some of the foregoing cases, there are

some factors here that could weigh against finding a serious threat. For example, as

defendant points out, his e-mail was not as graphic as some of the expressions in the above

cases found to constitute protected speech, he did not transmit the e-mail directly to the target

of the alleged threat, and the record contains no evidence of any specific prior threats he

that the statements were clear threats directed at the victim. Therefore, the court essentially determined

that, regardless of the test, any subjective-intent element was satisfied. Id. A similar analysis could be

performed here. Defendant wishes us to find that, given all circumstances, he did not communicate in

his e-mail a serious expression of an intent to harm a particular individual. However, as in Sucic,

defendant argued at trial that the e-mail was meant only to convey anger and frustration, not to threaten.

The trial court rejected that explanation, much as it could have rejected the explanation had defendant

testified that he had no subjective intent to threaten, and it found the testimony not credible. Instead, the

court found that the threat was serious. For many of the reasons discussed in our sufficiency analysis

above, the evidence supports that finding.

7

The Eleventh Circuit Court of Appeals, in United States v. Alaboud, 347 F.3d 1293, 1297 n.3 (11th

Cir. 2003), concluded similarly, noting:

“While neither the government [n]or [the defendant] contest[s] that we use an objective

standard in determining whether a communication is a threat, the government in its brief makes

an issue of the distinction between ‘listener-based’ and ‘speaker-based’ tests. A

‘speaker-based’ test is whether the person uttering the statements should be held to reasonably

foresee their effect on the recipient. See, e.g., United States v. Fulmer, 108 F.3d 1486, 1491-92

(1st Cir. 1997). On the other hand, a ‘listener-based’ test is whether a person hearing the

remarks would reasonably interpret them as an expression of an intent to harm. See, e.g.,

United States v. Malik, 16 F.3d 45, 49 (2d Cir. 1994).

This Court has not specified if we use a ‘listener-based’ or ‘speaker-based’ test because

there is no need to make this determination. Both tests are basically a ‘listener-based’ test. If we

were to employ the ‘speaker-based’ test, the jury would have to decide how a reasonable

listener would understand the communication in order to determine how a reasonable speaker

would foresee the effect of his or her communication. See Jennifer Rothman, Freedom of

Speech and True Threats, 25 Harv. J.L. & Pub. Pol’y 283, 303 (Fall 2001). That is why, in

[United States v. Callahan, 702 F.2d 964 (11th Cir. 1983)], we never specified if we have a

‘listener-based’ or ‘speaker-based’ test, but rather simply asked how a ‘reasonable person

would construe’ the communication. Callahan, 702 F.2d at 965 ***.” (Emphases omitted.)

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made against Shrader. Nevertheless, more circumstances weigh in favor of finding a serious

expression of intent to harm. First, regardless of the lack of details, the e-mail reflected that

defendant made a previous threat on Facebook that resulted in his expulsion from his high

school. It does not really matter that we know nothing about the contents of that former

threat: if it was graphic or related to Shrader, it weighs in favor of a finding that the e-mail

may be viewed as a second and/or serious threat directed against her. If, instead, it was not

particularly graphic or not related to Shrader, it supports a finding that, given that it

nevertheless resulted in expulsion, a serious consequence, defendant was on notice that the

contents of his e-mail would cause a reasonable recipient to fear violence. Second, unlike a

Facebook post or a website, available to many, defendant sent his e-mail only to a single and

specific recipient, Blanco, and the tenor of the e-mail was very serious and did not contain

any jest, hyperbole, or political dissent. Together, these factors support a finding that the

threat was serious. Third, the e-mail complained that defendant desperately “needs” to leave

his alternative school environment, that Geneva High School will not take him back, and that

he wants the dean of that high school dead. The e-mail reflects that defendant had written a

list of people whom he was going to kill, and he specifically identified at least some of those

individuals. Accordingly, the totality of the circumstances suggests a “true threat.”

¶ 37 We feel compelled to note that we are sympathetic to the fact that defendant was clearly

experiencing emotional difficulties when he wrote this e-mail. We have no doubt that the

e-mail did, in part, constitute, as defendant puts it, “an expression of teenage despair.” We

understand that, in her position as an anti-bullying activist, Blanco encourages students and

others to reach out to her through her “activist e-mail” address and that, in that sense,

defendant felt encouraged to communicate his emotions with her. Nevertheless, defendant

did more than simply express his emotions. Again, Blanco is not a trained therapist or a

professional with whom defendant shared a confidential, privileged relationship (and, of

course, even such professionals may report serious threats against others (see 740 ILCS

110/11 (West 2012)). The e-mail’s tenor, defendant’s history of making at least one prior

threat and purportedly, in close temporal proximity to the e-mail, a list of people whom he

was going to kill, and the e-mail’s expression of defendant’s present wish for specific

individuals to die and suffer are circumstances sufficient for us to find that a reasonable

sender would foresee that a reasonable recipient would view it as a serious threat to harm

another (and, here, Shrader specifically). Accordingly, we reject defendant’s argument that

the e-mail was not a true threat.

¶ 38 III. CONCLUSION

¶ 39 For the foregoing reasons, the judgment of the circuit court of Kane County is affirmed.

¶ 40 Affirmed.

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