People v. Khan
| Decision Date | 11 October 2018 |
| Docket Number | No. 2-16-0724,2-16-0724 |
| Citation | 127 N.E.3d 592,431 Ill.Dec. 59,2018 IL App (2d) 160724 |
| Parties | The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Aden D. KHAN, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
Stephen L. Richards, of Chicago, for appellant.
Robert B. Berlin, State’s Attorney, of Wheaton (Lisa Anne Hoffman and Edward R. Psenicka, Assistant State’s Attorneys, of counsel), for the People.
¶ 1 After a jury trial, defendant, Aden D. Khan, was convicted of committing disorderly conduct by making a threat of violence against persons at a school ( 720 ILCS 5/26-1(a)(3.5) (West 2012) ) and sentenced to 30 months' probation. On appeal, he contends that (1) the disorderly conduct statute is unconstitutional and (2) he was not proved guilty beyond a reasonable doubt. We affirm.
¶ 3 As pertinent here, a person commits disorderly conduct when he or she "knowingly * * * [t]ransmits 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." Id. The indictment against defendant charged that on March 5, 2013, he "
¶ 4 Defendant moved to dismiss the indictment, contending that the statute unconstitutionally criminalizes innocent conduct by requiring only that the defendant knew that a statement could be construed as a threat but not that he intended that the recipient feel threatened. He contended that in Elonis v. United States , 575 U.S. ––––, 135 S.Ct. 2001, 192 L.Ed.2d 1 (2015), the Supreme Court read a heightened scienter requirement into a federal statute that criminalizes transmitting a threatening statement that a person knows or should know would intimidate a reasonable recipient. He argued, however, that our supreme court has refused to read any mental state into statutes that criminalize innocent conduct but has instead invalidated these laws as lacking a rational basis. The motion cited, among other opinions, People v. Carpenter , 228 Ill. 2d 250, 320 Ill.Dec. 888, 888 N.E.2d 105 (2008), and People v. Wright , 194 Ill. 2d 1, 251 Ill.Dec. 469, 740 N.E.2d 755 (2000). The trial court denied the motion.
¶ 5 At trial, the State first called Melissa Hinkle. The court instructed the jury that her testimony was to be considered solely on the issue of defendant's intent. Hinkle testified as follows. On November 9, 2010, while working as a police officer in Novato, California, she went to defendant's high school and learned that, on October 19, 2010, he had posted a message on Facebook, titled "The people who i want to kill most." The list included At the time, defendant was 17 years old.
¶ 6 Hinkle testified that she spoke to defendant at his home. He said that he had explained to "Mr. Casper" that he wrote the message because he was "venting." Defendant was not charged with a crime but was suspended from school for five days.
¶ 7 Kimberly Sluis testified as follows. In March 2013, she was the dean of students at North Central College in Naperville. In February, she first visited the "North Central Confessions" Facebook page. The page displayed the college's logo but had been set up without its permission. On March 5, 2013, Sluis read the post at issue and saw it as "directly threatening to our campus community." To Sluis, the post meant that "there was somebody coming to our campus daily with a gun, and that if the right set of circumstances existed the person would use that weapon against members of our campus community." Sluis called "campus safety," which in turn notified the Naperville police. At that point, she did not know who had posted the message. On March 5, 2013, nobody named Aden Khan was or had been enrolled at North Central College. Cassandra Balaskas was attending the school and had been questioned about the message.
¶ 8 Sluis testified that several other messages appeared on the Facebook page on March 5, 2013. One read, " ‘I nominate Tony DiMeo as the person we (literally) throw under a bus.’ " Sluis identified DiMeo as a North Central College student, but she did not know who posted the message. The administration had spoken to DiMeo previously about other messages on the page that mentioned him, but there was no investigation into who had posted the message of March 5, 2013. The trial court admitted printouts of the Facebook page for March 5, 2013.
¶ 9 The State then called Richard Wistocki, a Naperville police detective, who testified as follows. On March 5, 2013, he visited the "North Central Confessions" page and uploaded an "exigent circumstance letter" to Facebook. Wistocki was concerned because "over the last ten years prior every school shooter ha[d] had some kind of post on social media." Wistocki wanted to find out who was bringing a gun to North Central College every day, and he interpreted "bag" to mean a body bag. He eventually came up with defendant's name, e-mail address, and cell phone number. Wistocki never investigated who posted the message about DiMeo.
¶ 10 Wistocki testified that he called defendant. Defendant admitted that he administered the "North Central Confessions" page. Wistocki told him about the post. Defendant responded that the post was "a joke" and that "[e]veryone knows if you post something on Facebook it's a joke." Asked who had connected him with the Facebook page, defendant eventually named Balaskas, a friend who attended North Central College. He said that he owned no guns. Wistocki never asked defendant whether he had intended to frighten anybody by posting the message.
¶ 11 Wistocki testified that he obtained Balaskas's permission to access her Facebook account. He read an exchange from the evening of March 5, 2013, between her and defendant. Defendant told Balaskas that the police would be contacting her about his post and that she should deny that she had anything to do with it, which was the truth. He apologized for getting her involved with the investigation and said that he would take all the consequences of his act.
¶ 12 Wistocki testified that, on March 29, 2013, he participated in arresting defendant at defendant's home in Madison, Wisconsin. Wistocki and a special agent interviewed defendant at the police station. After signing a rights waiver, defendant was interviewed. At trial, excerpts of the interview were played for the jury. In the interview, defendant admitted posting the message at issue. Wistocki reminded him of their phone conversation, in which defendant had asked Wistocki why the police would waste time and resources on the matter. Defendant responded that he was still wondering. Wistocki pointed out that schools these days were sensitive about threats of violence in light of Sandy Hook and other shootings. Defendant said, "I get why people are upset [with his post], I just don't get—this." By "this" he meant "why it's come to this," i.e. , the arrest.
¶ 13 The State rested, and defendant put on no evidence. In closing argument, the prosecutor told the jurors that the judge would instruct them that the State had to prove that defendant had knowingly transmitted a threat of violence directed against persons at school and that he had intended to place those persons in reasonable apprehension of violence. The prosecutor contended that the first proposition was obvious from the content of the post. The second was plainly inferable: defendant could have had no intent other than to scare people at North Central College. He had in fact done so: Sluis, campus safety, and Wistocki all took the message as a serious threat. Moreover, in 2010, defendant had posted a list of people whom he wanted to kill and had been suspended for it, so he knew what he was doing on March 5, 2013.
¶ 14 Defendant argued that his action resulted from his immaturity and poor social skills. His conduct did not prove that he wanted to scare people; it was "venting," as had been his expression of a desire to kill the Pope and God. Defendant resembled a child who lived a "fantasy life." Although common sense might tell someone that the message that he posted on March 5, 2013, would make people afraid, common sense was what people like him lacked. Moreover, Wistocki had never asked him what he had intended or whether he had meant to scare people. Defendant might have acted negligently or recklessly, but no more.
¶ 15 Among the instructions that the court gave the jury were the following. First, "[a] person commits the offense of disorderly conduct when he knowingly transmits a threat of violence directed against persons at his school whether or not school is in session and he intends that the threat would place those persons in reasonable apprehension of violence." Second, "[a] threat is knowingly transmitted if the defendant transmitted a communication for the purpose of issuing a threat of violence directed at persons at a school and with knowledge that the transmitted communication will be viewed as a threat of violence directed at persons at a school."
¶ 16...
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...we will address whether defendant's cyberstalking conviction can be sustained based on the threat provision. See id. ¶ 39 ; People v. Khan , 2018 IL App (2d) 160724, ¶ 37, 431 Ill.Dec. 59, 127 N.E.3d 592 (discussing that Relerford concluded that subsection (a)(2) "separately cover[ed] the m......
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...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, 431 Ill.Dec. 59, 127 N.E.3d 592 (same). ¶ 56 Under the guiding principles set forth in Black and Elonis , we construe t......