People v. Sucic

THIRD DIVISION
May 19,
2010

No. 1-08-0371

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
) the Circuit Court
Plaintiff-Appellee, ) of Cook County.
)
v. )
)
ZLATAN SUCIC, ) Honorable
) Garritt E. Howard,
Defendant-Appellant. ) Judge Presiding.

JUSTICE QUINN delivered the opinion of the court:

Following a bench trial, defendant Zlatan Sucic was convicted of cyberstalking,

harassment through electronic communication, and stalking. Defendant was sentenced to

concurrent terms of three years in prison for each count. On appeal, defendant contends that: (1)

the cyberstalking statute (720 ILCS 5/2-7.5(a)(1) (West 2008)) violated his first amendment right

to free speech and is unconstitutionally overbroad and vague; (2) his convictions for cyberstalking

and harassment through electronic communication violate the one-act, one-crime rule; (3) the

State failed to prove him guilty beyond a reasonable doubt of cyberstalking, harassment through

electronic communication, and stalking; and (4) his case should be remanded for a proper inquiry

into his pro se allegations of ineffective assistance of counsel, as required by People v. Krankel,

102 Ill. 2d 181 (1984). For the following reasons, we affirm in part and vacate in part.
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I. BACKGROUND

At trial, Heather Stern testified that she is 35 years old and lives with her 6-year-old son,

who is autistic, in an apartment in Park Ridge, Illinois. In spring 2006, Stern’s home flooded and

she sought temporary housing while she was involved in negotiations with her insurance

company. Stern testified that she met defendant, a 43-year-old Serbian immigrant, through an on-

line roommate matching service. Stern testified that although she did not become roommates

with defendant, she maintained a friendship with defendant and met him on a monthly basis for

coffee. Stern explained that she was interested in learning more of the Serbian language and

defendant wanted to improve his English.

In July 2006, defendant and several other people helped Stern and her son move into a

new apartment in Park Ridge, Illinois. Stern testified that, around that same time, she began

working for defendant’s granite business. Stern testified that she worked from home and

performed general office work for defendant, including contacting clients, customer service, and

bookkeeping. Defendant began staying overnight periodically at Stern’s apartment while he was

looking for a new apartment. Defendant did not have a key to Stern’s apartment, but since Stern

worked from home and had her son, she was usually home. At the time, defendant and Stern’s

son had a close relationship. Stern testified that defendant was supposed to pay her rent in

addition to her salary. Stern testified that defendant often paid her in cash and would alternatively

designate it as rent or pay, but still be behind on both. Stern testified that as a result, she and

defendant argued about his payments and she ultimately quit working for defendant in November

or December 2006.

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Stern also testified that defendant’s behavior changed in the summer of 2006. Stern

testified that when she first met defendant “[h]e was very much a gentlemen.” Stern testified that

defendant became “pushy,” “didn’t respect boundaries,” and “wasn’t predictable.” Stern testified

that she informed defendant that she was not interested in a romantic relationship with him, but

defendant “wouldn’t take no for an answer.” Stern testified, “[Defendant] had beliefs about how

women should be *** and I didn’t understand them and my refusal to agree with them was met

with *** you’re a bitch or you are stuck up or *** it makes you a slut, you must want to sleep

with other men if you don’t want to commit to me.” Stern testified that she “wasn’t comfortable

with how [defendant] was dealing with the business or the personal relationship” and defendant

stopped staying at her apartment on October 17 or October 18, 2006.

Stern testified that during the early morning hours on January 27, 2007, she was asleep on

the couch in her living room when she heard a “jingling noise” from the back door handle “as if

someone were attempting to open it.” Stern testified that she became alarmed because no one

ever used the back door and her son was asleep in his bedroom. Stern testified that she could not

find her cellular phone, so she got a knife from the kitchen and ran to the back door. Stern

testified that she slammed her weight against the back door and locked it as defendant was trying

to open the door. Stern testified that defendant began screaming expletives at her, calling her a

“bitch” and asking her, “Why are you doing this?” Stern testified that she “just freaked out” and

did not call the police immediately because she “knew” defendant. Stern subsequently made a

police report.

Stern testified that after the January 27, 2007 incident, defendant continued to leave her

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voice mail messages and send her e-mails. On February 19, 2006, Stern discovered that someone

had deflated the tires on her car.

Stern testified that on March 13, 2007, she received a number of e-mails and voice mail

messages from defendant. Stern identified People’s exhibit 2, as an e-mail that defendant sent to

her on March 13, 2007, at 1:57 a.m., which was part in English and part in Serbian.1 The parties

stipulated to translations into English from Serbian made by an official Serbian translator, Ivanka

Kailovski. The subject of the e-mail was in Serbian and translated as “Lamb and its father=ME.”

The e-mail stated:

“MOLIM TE RAZMISLI STA RADIS

KADA DODJEM U PROBLEM, WITH FUTURE (BUDUCE VREME, FUTURE)

JA CU DA SE UBIJEM

(MY LIFE WILL VANISH) OR I WILL DO A SUACIDE [sic]

and. . . I TEBE VODIM SA SOBOM = MEANS 'I WILL END MY LIFE AND I AM

TAKEING [sic] you with me

[OR]

I’LL GIVE YOU AN OFFER!

IN ORDER NOT TO REPORT YOU TO STATE FARM, CALLING FEDS ON

1
The parties stipulated that Jeff Stanford, a senior supervisor for legal services at Yahoo,

Inc., would testify that the e-mails in question were sent from "TWRControl@yahoo.com" to

"LuckyCharms_x_6@yahoo.com." Stern testified that these were defendant and her e-mail

addresses, respectively.

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INSURANCE FRAUD, AS A CON, WHICH IS FEDERAL OFFENSE, AND NO

BOND, MONEY, BROTHER, CAN SAVE YOU FROM JAIL, MEANING 5 YEARS

MIN., I’LL GIVE YOU AN OPTION, CONTRACT

SO CONTACT ME AS SOON AS POSSIBLE

THANK YOU

EYE FOR EYE, NOW THERE IS NO MOMENT FOR MERCY

YOU DID NOT HAD [sic] FOR ME

LET ME SHOW YOU WHO IS THE MAN”

The parties stipulated that the interpreter would testify that “the initial Serbian written on the

email says please think what you are doing. When I am in a problem in the future, I will commit

suicide, my life will vanish or I will do suicide and I will take you with me.”

Stern next identified People’s exhibit 4, a compact disc containing recordings of eight

voice mail messages left by defendant on Stern’s phone. These voice mails included a message

left on March 13, 2007, at 2:57 a.m., after defendant sent the e-mail contained in People’s exhibit

2, in which defendant asked Stern, inter alia, to read his e-mail, acknowledged deflating Stern’s

car tires, and indicated that Stern “should call [him] back *** for [her] sake.” Defendant stated

that “a person [who] is being destroyed *** should get even” and “if I get even, I get even big

time, trust me.” Defendant further stated that “this is your choice, you and me together or this

*** insurance fraud” and that he “would not have done this unless it was in a matter of love.”

Stern next identified People’s exhibit 5, which was a second e-mail that defendant sent to

her on March 13, 2007, at 3:31 a.m. In this e-mail, defendant threatened to report Stern for

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insurance fraud unless she agreed to marry him. The e-mail then stated, in relevant part:

“YOU KILLED MY HEART, I WILL GET EVEN

***

DEAL IS ME OR YOU KNOW...TRY ME

I AM SO DESPERATE I DO NOT MIND DYING AS OF NOW

TRY ME KILLER”

Stern testified that after receiving the second e-mail, defendant left her another phone

voice mail message on March 13, 2007, at 4:09 a.m. The State introduced this voice mail

message as People’s Exhibit 6, in which defendant directed Stern to check her e-mail and stated,

inter alia, “I’m dead. I’m a dead person without you and [your son]. So, I will take you with

me. *** I need you with me *** in heaven, okay?”

Stern testified that defendant’s voice mail messages, e-mails, and the January 27, 2007

attempted break-in made her feel “scared” and she “very much so” felt threatened. Stern testified

that from defendant’s voice mail messages and e-mails, she surmised that defendant took her

receipts that she had submitted to her insurance company when her home had flooded and that

defendant was going to claim that the receipts were fraudulent.

Stern’s neighbors, Jennifer Uslais and Jim Dobrowski, testified that on February 19, 2007,

at about 8:30 p.m., they heard noises in the hallway of their apartment building. Uslais testified

that she saw defendant in the hallway between her apartment door and Stern’s apartment door

directly across the hall. Defendant told Uslais that “he wanted to talk to [her] about [her]

neighbor” and asked her to come out to the hallway to talk to him. Uslais declined and told

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defendant that if he did not leave, she would call the police. About an hour later, Dobrowski

testified that defendant returned and Dobrowski observed him “caress” Stern’s door knob and

door frame. Dobrowski testified that he thought defendant was trying to break into Stern’s

apartment and Dobrowski directed Uslais to call the police. Dobrowski went into the hallway

with his samurai sword and told defendant to leave the apartment building. Defendant responded

that Stern was “doing some kind of witchcraft.” Dobrowski testified that defendant finally left the

building and the police arrived shortly thereafter.

Defendant testified that he met Stern through a roommate matching service and met her

for coffee on two occasions. In July 2006, defendant helped Stern move into a new apartment

and, about a week later, they began a sexual relationship. Defendant testified that Stern became

pregnant in October 2006, but miscarried in November 2006. Defendant testified that Stern then

asked him to have a vasectomy because she did not want to have any more children. Defendant

testified that throughout the summer and fall of 2006, he stayed in Stern’s apartment but did not

have a key to the apartment. Defendant testified that he became friends with Stern’s son, who is

autistic, and that he had special abilities to deal with autistic children from his previous

employment transporting children to special schools. Defendant testified that during this time, he

gave Stern the passwords to his e-mail accounts. Defendant testified that he moved out of Stern’s

apartment in December 2006. Defendant acknowledged that he had a laptop computer that “was

always with him” and to which Stern had no access after he moved out.

Defendant initially testified that Stern could have “manipulated” the e-mails in question,

but defendant testified that he recognized the e-mails and voice mail messages that he sent Stern

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on March 13, 2007. Defendant testified that he was “just depressed” at the time and that he was

“being used for money.” Defendant testified that his statement that he was going to kill himself

and take Stern with him was “just spiritual” and “a figure of speech.” Defendant testified that at

the time his “heart was broken” and he had no intention of killing himself or Stern. Defendant

testified that his statement that Stern killed his heart and that he would get even meant that “she

would be alone.” Defendant testified, “It doesn’t mean to kill as you claim ***. Killing heart is a

spiritual thing.” Defendant testified that when he stated that he would kill “every spirit that

messes with my spirit” he meant it in an emotional way but may have expressed himself the wrong

way because English was not his native language. Defendant testified that his statements

regarding the “insurance fraud” related to the fact that after he moved of Stern’s apartment, he

discovered his receipts had been reorganized into Stern’s own files. As a result, defendant

believed Stern was using his receipts for claims on her insurance. Defendant testified that Stern

had offered to marry him on December 15, 2006 “under certain conditions” and that his message

to Stern was promising “to come through as she requested.” Defendant also testified that if Stern

did not marry him, he threatened to turn her in for the alleged insurance fraud. Defendant testified

that he was heartbroken about her breaking up with him and threatened to turn Stern in, but

maintained, “I have done nothing.”

During cross-examination, defendant acknowledged that he did not have a Serbian

interpreter at trial and was not in fear of being misunderstood during his testimony. Defendant

testified that he has been in this country for 14 years, had a construction business that was fairly

successful, and also had helped children with disabilities and spoke English to them.

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Following closing arguments, defendant was found guilty of cyberstalking, harassment

through electronic communication, and stalking. The trial court rejected defendant’s defense that

his statements were not intended to be threats directed at Stern. The court found:

“[Defendant’s] intent can be nothing other than that he was trying to impose his will on

Ms. Stern and he says his will is he either wants her to marry him and become a family or

he wants her to go to prison or he wants her dead. Those are the choices that she has.

And the fact that she doesn’t want to marry him is something that angers him.

*** [H]is idea of love is if I can’t have you, then either I am going to kill myself and

take you with me or I am going to make sure you go to prison. There’s nothing in any of

those communications that can be misconstrued.

The defendant wants me to believe that this is some sort of poetic license that

when he says I am going to kill myself and take you with me that he is meaning something

spiritual. I don’t believe there’s anything spiritual here. I think that the only purpose of

him going on this assault, this attack during the night of March 13 was to threaten, to

upset, was to intimidate, was to attack Ms. Stern.

You tried to force your way into her apartment. That was not successful. ***

What you did was nothing short of trying to terrorize this woman. *** This is exactly

why the cyberstalking and stalking laws were created for people like you. You wanted to

terrorize her.”

Defendant was subsequently sentenced to concurrent terms of three years in prison on each count.

Defendant now appeals.

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II. ANALYSIS

We begin our analysis with the pertinent statute. The cyberstalking statute in effect at the

time defendant was charged provided:

“(a) A person commits cyberstalking when he or she, knowingly and without

lawful justification, on at least 2 separate occasions, harasses another person through the

use of electronic communication and:

(1) at any time transmits a threat of immediate or future bodily harm, sexual

assault, confinement, or restraint and the threat is directed towards that person or a

family member of that person, or

(2) places that person or a family member of that person in reasonable

apprehension of immediate or future bodily harm, sexual assault, confinement, or

restraint[.]

***

(b) As used in this Section:

‘Harass’ means to engage in a knowing and willful course of conduct directed at a

specific person that alarms, torments, or terrorizes that person.

‘Electronic communication’ means any transfer of signs, signals, writings, sounds, data, or

intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic,

photoelectric, or photo-optical system. ‘Electronic communication’ includes transmissions

by a computer through the Internet to another computer.

(c) Sentence. Cyberstalking is a Class 4 felony. A second or subsequent

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conviction for cyberstalking is a Class 3 felony.” 720 ILCS 5/12-7.5 (West 2008).

The cyberstalking statute has been amended since defendant was charged and convicted. The

most recent amendment became effective January 1, 2010 (see Pub. Act 96-686, § 5, eff. Jan. 1,

2010). In this appeal, however, we are called upon to only consider the constitutionality of the

statute in effect at the time defendant was charged and convicted.

A. Overbreadth

Defendant first contends that the cyberstalking statute is unconstitutionally overbroad

because it criminalizes “a substantial amount of expression, much of which is protected by the

First Amendment.” To demonstrate, defendant sets forth several hypothetical situations in which

he contends that the statute proscribes innocent conduct, such as when a threatening e-mail is sent

with both parties knowing it is a practical joke. The State responds that the statute is not

overbroad where it does not proscribe constitutionally protected speech and is, thus,

constitutional.

We review constitutional challenges to a statute de novo. People v. Greco, 204 Ill. 2d

400, 407 (2003). The doctrine of overbreadth “is designed to protect first amendment freedom of

expression from laws written so broadly that the fear of punishment might discourage people from

taking advantage of the freedom.” People v. Bailey, 167 Ill. 2d 210, 226 (1995). The doctrine is

used sparingly, and in order for a statute to be invalidated for overbreadth, its overbreadth “ 'must

not only be real, but substantial as well.' ” Bailey, 167 Ill. 2d at 226, quoting Broadrick v.

Oklahoma, 413 U.S. 601, 615, 37 L. Ed. 2d 8325, 842, 93 S. Ct. 2909, 2918 (1973).

In addressing a facial overbreadth challenge, the first task is to determine whether the

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statute reaches constitutionally protected speech, as defendant contends. See Bailey, 167 Ill. 2d

at 226. In viewing the cyberstalking statute, we find that defendant’s facial overbreadth argument

fails because the cyberstalking statute does not impinge on any constitutionally protected right of

free speech.

For defendant to be convicted of cyberstalking, the State must prove that defendant

“knowingly and without lawful justification” harassed the victim by transmitting “a threat of

immediate or future bodily harm, sexual assault, confinement, or restraint.” 720 ILCS 5/12-7.5

(West 2008). The State must also prove that defendant transmitted such a threat on at least two

separate occasions. 720 ILCS 5/12-7.5 (West 2008). It is clear that the statute was intended to

only punish speech performed without lawful authority.

In Bailey, our supreme court rejected the defendant’s argument that the stalking statute

(720 ILCS 5/12-7.3 (West 1992)) was unconstitutionally overbroad because it reached speech

protected by the first amendment. Bailey, 167 Ill. 2d at 227-28. In Bailey, the stalking statute at

issue provided:

“(a) A person commits stalking when he or she transmits to another person a threat

with the intent to place that person in reasonable apprehension of death, bodily harm,

sexual assault, confinement or restraint, and in furtherance of the threat knowingly does

any one or more of the following acts on at least 2 separate occasions:

(1) follows the person, other than within the residence of the defendant;

(2) places the person under surveillance by remaining present outside his or her

school, place of employment, vehicle, other place occupied by the person, or

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residence other than the residence of the defendant.” 720 ILCS 5/12-7.3 (West

1992).

In upholding the statute, our supreme court explained, “For defendant to be convicted of

stalking, the State must prove that defendant threatened the victim ‘with the intent to place that

person in reasonable apprehension of death, bodily harm, sexual assault, confinement or restraint.’

In furtherance of the threat, the State must also prove that defendant followed the victim or

placed the victim under surveillance on at least two separate occasions. Moreover, as previously

explained, the statute was intended to only punish that conduct performed without lawful

authority.” Bailey, 167 Ill. 2d at 226-27. Our supreme court noted that while the offense of

stalking contained an element of speech, that speech was not constitutionally protected. The

court explained, “ ‘Where speech is an integral part of unlawful conduct, it has no constitutional

protection.’ ” Bailey, 167 Ill. 2d at 227, quoting Chicago Real Estate Board v. City of Chicago,

36 Ill. 2d 530, 552-53 (1967).

Here, defendant argues that, unlike the stalking statute in Bailey, the cyberstalking statute

does not require any overt action such as following the victim or placing the victim under

surveillance in addition to a threat. As a result, defendant maintains that the cyberstalking statute

criminalizes speech alone and is thus unconstitutionally overbroad.

However, defendant misunderstands our supreme court’s analysis in Bailey. In Bailey, our

supreme court did not hold that a physical act in addition to a threat was a prerequisite to survive

an overbreadth challenge. Rather, the court explained:

“The element of a threat in the stalking statute is an integral part of the offense. The

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offense cannot be committed without the initiation of the threat because the following and

surveillance requirements can only be met after a threat has been made. We therefore

conclude that the element of speech in the stalking statute is not constitutionally protected.

Moreover, because the statute only encompasses activities performed without lawful

authority, we find that it does not implicate any other constitutionally protected activity.”

Bailey, 167 Ill. 2d at 227-28.

In this case, the element of a threat is also an integral part of the offense of cyberstalking.

Therefore, the element of speech in the cyberstalking statute, the threat, does not fall within the

protections of the first amendment. In addition, our supreme court noted that the legislature’s

intent in enacting statutes, such as the stalking statute, was “to prevent violent attacks by allowing

the police to act before the victim was actually injured and to prevent the terror produced by

harassing actions.” Bailey, 167 Ill. 2d at 224. Our supreme court explained, “By construing the

statutes to proscribe only conduct performed ‘without lawful authority,’ the possibility that the

statutes reach innocent conduct is also avoided. Bailey, 167 Ill. 2d at 224-25.

Further, defendant’s hypothetical scenarios, i.e. a threatening e-mail sent as a practical

joke or common hyperbole, are not reasonable demonstrations of constitutionally protected

conduct punishable by the statute. The punishable behavior is narrowed by the elements of the

cyberstalking statute, such that the defendant must “knowingly and without lawful justification”

specifically intend to “haras[s]” the victim by transmitting the threat. 720 ILCS 5/12-7.5 (West

2008). Accordingly, no first amendment concerns are at issue here and the statute is not void for

overbreadth.

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Defendant, nonetheless, argues that the cyberstalking statute as applied to this case

violated his right to free speech because he did not intend his statements to be “true threats,”

which are excluded from first amendment protection. The State correctly notes that defendant’s

“as applied” argument does not present a viable facial challenge that would result in the wholesale

striking of the cyberstalking statute as unconstitutional. Rather, if defendant were to establish that

his statements did not constitute true "threats" within the meaning of the statute, the appropriate

remedy would be to vacate his sentence and conviction for cyberstalking. See Watts v. United

States, 394 U.S. 705, 708, 22 L. Ed. 2d 664, 667, 89 S. Ct. 1399, 1401 (1969) (statute

prohibiting threats against President of the United States was constitutional on its face; however,

the defendant’s political hyperbole did not fit within the statutory term “true threat” and the

defendant was to be acquitted).

Defendant relies on Virginia v. Black, 538 U.S. 343, 359-60, 155 L. Ed. 2d 535, 552, 123

S. Ct. 1536, 1548 (2003), in support of his argument that a subjective approach should be applied

to determine whether his statements amounted to “true threats.”

In Black, the United States Supreme Court considered the constitutionality of a Virginia

statute making it a criminal offense to burn a cross with intent to intimidate. The Court

invalidated the statute on first amendment grounds, but the justices were divided on the rationale.

Black, 538 U.S. at 336-67, 155 L. Ed. 2d at 556-57, 123 S. Ct. at 1551-52. For our purposes,

here, the plurality noted that the first amendment does not preclude restrictions on certain

categories of speech having little or no social value, and threats are one such category. The

plurality offered a new definition of true threats:

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“ ‘True threats’ encompass those statements where the speaker means to

communicate a serious expression of an intent to commit an act of unlawful

violence to a particular individual or group of individuals. [Citations.] The speaker

need not actually intend to carry out the threat. Rather, a prohibition on true

threats ‘protects 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.’ [Citation.] Intimidation in the constitutionally

proscribable sense of the word is a type of true threat, where a speaker directs a

threat to a person or group of persons with the intent of placing the victim in fear

of bodily harm or death.” Black, 538 U.S. at 359-60, 155 L. Ed. 2d at 551-52,

123 S. Ct. at 1548.

Defendant notes that some federal courts have held that a “statement qualifies as a true threat only

if the speaker subjectively intended it as a threat.” United States v. Parr, 545 F.3d 491, 499 (7th

Cir. 2008), citing United States v. Magleby, 420 F.3d 1136 (10th Cir. 2005), United States v.

Cassel, 408 F.3d 622, 631 (9th Cir. 2005). However, not all courts have agreed that Black

changed the test for true threats. See, e.g., Porter v. Ascension Parish School Board, 393 F.3d

608, 616 (5th Cir. 2004) (interpreting Black to require only that the speaker knowingly made the

statement, not subjectively intended it as a threat).

This court has previously found that the term “threat” implies that the threatening

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

according to its tenor.' " People v. Zamudio, 293 Ill. App. 3d 976, 983 (1997), quoting, People v.

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Maldonado, 247 Ill. App. 3d 149, 153-54 (1993). However, this court need not resolve whether

the Supreme Court in Black intended to add a subjective intent requirement to the test for true

threats in order to address the constitutionality of the cyberstalking statute. As previously

discussed, the statute was intended to only punish conduct performed “knowingly and without

lawful justification.” 720 ILCS 5/12-7.5 (West 2008). The State must prove that defendant

engaged in such conduct or speech that was not constitutionally protected. As discussed later in

addressing defendant’s challenge to the sufficiency of the evidence, defendant placed his

subjective intent at issue by arguing that his statements were merely “spiritual” in nature rather

than threats. The trial court, as trier of fact, rejected defendant’s argument and determined that

his statements were clear threats directed at the victim. Moreover, while defendant asserts that he

did not intend to actually harm the victim, the Supreme Court explained in Black, defendant “need

not actually intend to carry out the threat.” Black, 538 U.S. at 359-60, 155 L. Ed. 2d at 551-52,

123 S. Ct. at 1548. Defendant’s statements in this case clearly fit within the “true threat”

requirement of the cyberstalking statute.

B. Vagueness

Defendant additionally argues that the cyberstalking statute is unconstitutionally vague on

its face. “[A] statute is void for vagueness if it reaches a substantial amount of constitutionally

protected conduct.” City of Chicago v. Pooh Bah Enterprises, Inc., 224 Ill. 2d 390, 442 (2006).

To prevail on a vagueness challenge, the challenger must demonstrate that: (1) a person of

ordinary intelligence would not have a reasonable opportunity to understand what conduct the

statute prohibits; or (2) the statute authorizes or encourages arbitrary enforcement. Hill v.

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Colorado, 530 U.S. 703, 732, 147 L. Ed. 2d 597, 621, 120 S. Ct. 2480, 2498 (2000).

We find that defendant failed to demonstrate that the cyberstalking statute is vague.

Because the analyses for facial overbreadth and vagueness challenges are akin and we previously

determined in his overbreadth challenge that defendant failed to demonstrate that the

cyberstalking statute punished a substantial amount of protected speech, defendant also cannot

present a successful vagueness argument. See People v. Butler, 375 Ill. App. 3d 269, 273 (2007)

(holding the Illinois witness harassment statute was not unconstitutionally overbroad or vague on

its face).

Nevertheless, we also find that defendant cannot demonstrate that the cyberstalking

statute fails to provide citizens with adequate notice or leads to arbitrary enforcement.

Specifically, defendant asserts that citizens are not apprised of the prohibited conduct and

arbitrary enforcement results where the legislature did not precisely define a standard by which to

judge “emotional distress” or “mental anguish” caused by a statement that “alarms, torments, or

terrorizes” the victim. See 720 ILCS 5/12-7.5 (West 2008). Defendant relies on Coates v. City

of Cincinnati, 402 U.S. 611, 29 L. Ed. 2d 214, 91 S. Ct. 1686 (1971), in support of his argument.

However, the present case is distinguishable.

In Coates, the United States Supreme Court held that a statute criminalizing situations

where three or more people annoyed any police officer or passerby while standing on a sidewalk

or street corner was unconstitutionally vague because the proscribed conduct, annoying an officer

or passerby, without more amounted to “no standard of conduct *** specified at all.” Coates,

402 U.S. at 614, 29 L. Ed. 2d at 217, 91 S. Ct. at 1688. In contrast, the scope of punishable

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conduct under the instant statute is limited by the individual’s specified intent to “haras[s]” by

communicating a “threat” so as to “engage in a knowing and willful course of conduct” directed

at the victim that “alarms, torments, or terrorizes” the victim. See 720 ILCS 5/12-7.5 (West

2008). While the legislature framed the prohibited result in general terms of causing alarm,

torment or terror, it is well settled that “ ‘ “[i]mpossible standards of specificity *** are not

required.” ’ ” Butler, 375 Ill. App. 3d at 274, quoting People v. Parkins, 77 Ill. 2d 253, 256

(1979), quoting People v. Schwartz, 64 Ill. 2d 275, 280 (1976). We determine that application of

the ordinary meaning of the statutory language and recognition of the evil the statute intends to

prevent, i.e., to prevent violent attacks by allowing the police to act before the victim is actually

injured and to prevent the terror produced by harassing actions (see Bailey, 167 Ill. 2d at 224),

provides adequate notice and prevents arbitrary enforcement. See Butler, 375 Ill. App. 3d at 274.

Accordingly, we conclude that the cyberstalking statute is not unconstitutionally vague on its face.

C. One-Act, One-Crime Rule

Defendant next argues that this court should vacate his conviction for harassment through

electronic communication where that conviction was based on the same act used to support his

conviction for cyberstalking, in violation of the one-act, one-crime rule announced in People v.

King, 66 Ill. 2d 551 (1977).

In King, the supreme court stated:

“Prejudice results to the defendant only in those instances where more than one

offense is carved from the same physical act. Prejudice, with regard to multiple acts,

exists only when the defendant is convicted of more than one offense, some of which are,

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by definition, lesser included offenses. Multiple convictions and concurrent sentences

should be permitted in all other cases where a defendant has committed several acts,

despite the interrelationship of those acts. ‘Act,’ when used in this sense, is intended to

mean any overt or outward manifestation which will support a different offense. We hold,

therefore, that when more than one offense arises from a series of incidental or closely

related acts and the offenses are not, by definition, lesser included offenses, convictions

with concurrent sentences can be entered.” King, 66 Ill. 2d at 566.

The King case was reaffirmed and clarified by our supreme court in People v. Rodriguez, 169 Ill.

2d 183 (1996). In Rodriguez, the court noted that, under King, a court first must determine

whether a defendant’s conduct consists of one act or several acts. Multiple convictions are

improper if they are based on precisely the same physical act. If the defendant’s conduct is based

on more than one physical act, a court must then determine whether any of the offenses are lesser-

included offenses. If they are, then multiple convictions are improper. Rodriguez, 169 Ill. 2d at

186. The court held that convictions for both aggravated criminal sexual assault and home

invasion were proper where the defendant committed multiple acts, despite the interrelationship of

those acts. Rodriguez, 169 Ill. 2d at 189.

In People v. Artis, 232 Ill. 2d 156, 168 (2009), our supreme court held that it would not

abandon the one-act, one-crime rule announced in King. In so doing, the court noted that it has

found a one-act, one-crime violation to qualify for review under the second prong of the plain-

error rule. Artis, 232 Ill. 2d at 165-66. The court explained:

“Under that portion of the rule, a court may disregard forfeiture where a clear or obvious

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error occurs and that error is so serious that it affected the fairness of the defendant’s trial

and challenged the integrity of the judicial process. [Citation.] The second prong of the

plain-error rule is ‘invoked only in those exceptional circumstances where, despite the

absence of objection, application of the rule is necessary to preserve the integrity and

reputation of the judicial process.’ ” Artis, 232 Ill. 2d at 165-66, quoting People v.

Harvey, 211 Ill. 2d 368, 387 (2004).

Recently, in People v. Nunez, No. 108189, slip op. at 4 (March 18, 2010), our supreme

court, citing Artis, held that “forfeited one-act, one-crime arguments are properly reviewed under

the second prong of the plain-error rule because they implicate the integrity of the judicial

process.”

Accordingly, while defendant in this case forfeited his one-act, one-crime argument for

review by failing to object or include the issue in a posttrial motion, we will consider defendant’s

argument under the plain-error rule.

Defendant was charged and convicted of cyberstalking (720 ILCS 5/12-7.5(a)(1) (West

2008)), a Class 3 offense, based on two e-mails sent to the victim on March 13, 2007, containing

the threats “that he will kill himself and take her with him” and “that the victim killed his heart and

he will get even.” Defendant was also charged and convicted of harassment through electronic

communication (720 ILCS 135/1-2(a)(4) (West 2008)), a Class 4 offense, based on the e-mail

sent to the victim containing the threat “that he will kill himself and take her with him.” There is

no separate act in this case. In one instance the e-mail threatening to “kill himself and take [the

victim] with him” is combined with a second e-mail to constitute cyberstalking, and in the other it

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is the same e-mail threatening to “kill himself and take [the victim] with him” to create a separate

offense of harassment through electronic communication. We hold that the one-act, one-crime

rule applies to these convictions. Therefore, the separate conviction for harassment through

electronic communication is reversed and the sentence vacated.

D. Sufficiency of the Evidence

Defendant also argues that the State failed to prove him guilty of cyberstalking and

stalking beyond a reasonable doubt.2

When reviewing the sufficiency of the evidence, this court must determine “ < ?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.)’ [Citations.]” People v. Cardamone, 232 Ill. 2d 504, 511 (2009). It is not this court’s

function to retry the defendant or substitute our judgment for that of the trier of fact. People v.

Evans, 209 Ill. 2d 194, 211 (2004). Rather, the trier of fact assesses the credibility of the

witnesses, determines the appropriate weight of the testimony and resolves conflicts or

inconsistencies in the evidence. Evans, 209 Ill. 2d at 211. In order to overturn the trial court’s

judgment, the evidence must be so improbable or unsatisfactory as to raise a reasonable doubt as

to the defendant’s guilt. People v. Graham, 392 Ill. App. 3d 1001, 1009 (2009).

To be convicted of cyberstalking, the State must prove that the defendant, on at least two

2
Because we vacate defendant's conviction and sentence for harassment through electronic

communication as violative of the one-act, one-crime rule, we need not consider defendant's

sufficiency of the evidence argument with respect to that offense.

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separate occasions, harassed the victim through the use of electronic communication by

transmitting “a threat of immediate or future bodily harm.” The cyberstalking statute defines

harassment as a “knowing and willful course of conduct” that “alarms, torments, or terrorizes” the

victim. 720 ILCS 5/12-7.5 (West 2008). Defendant contends that the State failed to prove that

defendant’s statements included two instances of threats of either future or immediate bodily harm

and that the victim was alarmed, tormented, or terrorized where she did not immediately call

police after receiving the e-mails from defendant.

Viewing the evidence in the light most favorable to the State, we find that the State

satisfied its burden. The evidence at trial established that on March 13, 2007 at 1:57 a.m.,

defendant sent the victim an e-mail in which, inter alia, defendant stated “I will commit suicide,

my life will vanish or I will do suicide and I will take you with me.” Defendant sent the victim a

second e-mail at 3:31 a.m., stating, “You killed my heart, I will get even,” “I am so desperate I do

not mind dying as of now,” “Try me.” The e-mail ended with the word “Killer.” The State also

presented evidence that defendant left the victim several voice mail phone messages in which

defendant, inter alia, directed the victim to check her e-mail and stated, “I’m dead. I’m a dead

person without you and [your son]. So, I will take you with me. *** I need you with me *** in

heaven, okay?” The victim also testified that defendant attempted to break into her apartment on

January 27, 2007. The victim’s neighbors testified that on the evening of February 19, 2007, they

observed defendant in the hallway of the victim’s apartment building and saw defendant caressing

the door. The victim’s neighbors testified that they asked defendant to leave the building two

separate times and called police. The victim testified on that date, February 19, 2007, the air was

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let out of her car’s tires and she received voice mail phone messages from the defendant

acknowledging that he flattened her tires. The victim further testified that defendant’s voice mail

messages, e-mails, and the January 27, 2007 attempted break-in made her feel scared and

threatened. While defendant argues that his e-mails referred to threatening to report the victim

for insurance fraud which did not amount to physical harm, defendant’s e-mails also contained

statements indicating that he would cause the victim bodily harm. In this context, the trial court

assessed the credibility of the witnesses and rejected defendant’s testimony that his statements

were merely spiritual in nature. We find that the evidence was not so improbable or

unsatisfactory as to raise a reasonable doubt as to the defendant’s guilt of cyberstalking. Graham,

392 Ill. App. 3d at 1009 (2009).

Defendant also contends that the evidence was insufficient to support his conviction for

stalking where the State failed to prove that defendant on two separate occasions placed the

victim “under surveillance.”

The stalking statute in effect at the time, provided as follows:

“(a) A person commits stalking when he or she, knowingly and without lawful

justification, on at least 2 separate occasions follows another person or places the person

under surveillance or any combination thereof and:

(1) at any time transmits a threat to that person of immediate or future bodily

harm, sexual assault, confinement or restraint; or

(2) places that person in reasonable apprehension of immediate of future bodily

harm, sexual assault, confinement or restraint.” 720 ILCS 5/12-7.3(a)(1),(a)(2) (West

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2008).

The statute also specifies that one “places a person under surveillance” by “remaining

present outside the person’s school, place of employment, vehicle, other place occupied by the

person, or residence other than the residence of the defendant.” 720 ILCS 5/12-7.3(d) (West

2008).

Defendant argues that his actions on January 27, 2007, and February 19, 2007, did not

constitute placing Stern “under surveillance” because he did not “remain present” outside her

residence. Defendant maintains that he merely went to Stern’s residence, where he formerly

resided, and that there was no evidence that the victim was inside of her residence on February

19, 2007.

This court considered a similar argument in People v. Daniel, 283 Ill. App. 3d 1003

(1996). In Daniel, the defendant challenged his aggravated stalking conviction, contending that

he did not remain present outside the victim’s place of employment. Daniel, 283 Ill. App. 3d at

1005-06. The evidence revealed that the defendant entered the victim’s workplace, threatened

her, threatened to damage her vehicle, and ranted for approximately 15 minutes. After he left the

building where the victim worked, the defendant crossed the street, walked to the rear of the

victim’s car, hit the window, and then departed. Daniel, 283 Ill. App. 3d at 1004. This court

found two distinct bases to uphold the defendant’s conviction based on the defendant’s actions

both inside and outside the victim’s place of employment. Daniel, 283 Ill. App. 3d at 1006. This

court held that the defendant violated the stalking statute by “ ‘remaining outside’ the [victim’s

place of employment]--even for a brief period–because of the nature of his actions, actions that

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the stalking statute was designed to prohibit and that established that he was no mere passerby.”

Daniel, 283 Ill. App. 3d at 1006 n.1. This court explained:

“We discern no statutory intent to set a minimum amount of time a defendant must remain

in the vicinity of his victim’s building before coming within the ambit of the stalking

statute. Thus, although