People v. Ashley, Docket No. 123989

• Court: Supreme Court of Illinois
• Writing for the Court: JUSTICE NEVILLE delivered the judgment of the court, with opinion.
• Citation: 162 N.E.3d 200,2020 IL 123989,443 Ill.Dec. 566
• Parties: The PEOPLE of the State of Illinois, Appellee, v. Marshall ASHLEY, Appellant.
• Docket Number: Docket No. 123989
• Decision Date: 24 January 2020

2020 IL 123989
162 N.E.3d 200
443 Ill.Dec. 566

The PEOPLE of the State of Illinois, Appellee,
v.
Marshall ASHLEY, Appellant.

Docket No. 123989

Supreme Court of Illinois.

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

162 N.E.3d 206

James E. Chadd, State Appellate Defender, Patricia Mysza, Deputy Defender, and Jonathan Yeasting, Assistant Appellate Defender, of the Office of the State Appellate Defender, of Chicago, for appellant.

Kwame Raoul, Attorney General, of Springfield (Jane Elinor Notz, Solicitor General, and Michael M. Glick and Garson S. Fischer, Assistant Attorneys General, of Chicago, of counsel), for the People.

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

443 Ill.Dec. 572

¶ 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, 2018 WL 3425326. 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.

162 N.E.3d 207

443 Ill.Dec. 573

¶ 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"

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.

162 N.E.3d 208

443 Ill.Dec. 574

¶ 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 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, 422 Ill.Dec. 774, 104 N.E.3d 341. 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.

¶ 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...