from the Circuit Court of Cook County, Criminal Division. No.
14 CR 16584 Honorable Matthew E. Coghlan, Judge Presiding.
JUSTICE GRIFFIN delivered the judgment of the court, with
opinion. Presiding Justice Mikva and Justice Pierce concurred
in the judgment and opinion.
1 After a bench trial, defendant Wilson Morocho was convicted
of three counts of aggravated stalking. 720 ILCS
5/12-7.4(a)(1) (West 2014). The trial court merged the
offenses and sentenced defendant to four years in prison. On
appeal, defendant challenges the facial constitutionality of
the offense upon which his conviction was predicated.
2 Defendant's conviction was predicated upon a violation
of section 12-7.3(a)(2) of the Criminal Code of 2012
(Stalking Statute) (720 ILCS 5/12-7.3(a)(2) (West 2014)),
which defines the offense of stalking as follows: a person
commits stalking when he or she knowingly
"threatens" a specific person two or more times and
knows or should know the threats would cause a reasonable
person to suffer emotional distress. The offense is
aggravated if the defendant causes bodily harm to the victim.
720 ILCS 5/12-7.4(a)(1) (West 2014).
3 Defendant argues that subsection (a)(2) is overbroad in
violation of the first amendment (U.S. Const., amend. I) and
criminalizes wholly innocent conduct in contravention of the
guarantees of substantive due process. For the following
reasons, we agree and find subsection (a)(2) facially
overbroad and unconstitutional.
5 On August 25, 2014, Beatriz Avila was working the morning
shift at a franchise in the James R. Thompson Center in
Chicago. Throughout her shift she received a series of text
messages from defendant, the father of her son. After she
viewed a message and burst into tears, the victim's
coworkers asked her what was wrong. What she told them
prompted one of her coworkers to contact an Illinois State
6 The victim was met by an officer and escorted to the second
floor of the Thompson Center to file a police report. She
alleged in the report that defendant sent her threatening
text messages. After the report was filed, Illinois State
Police officers told the victim to text defendant and ask him
to come to her workplace. She sent the text and defendant
showed up. He was immediately arrested.
7 Upon arrest, police recovered a knife wrapped in aluminum
foil from defendant's person. They took pictures of the
text messages defendant sent to the victim and photographed a
bruise on her arm. Defendant waived his Miranda
rights (see Miranda v. Arizona, 384 U.S. 436 (1966))
and participated in a police interview.
8 Defendant confessed verbally and in writing to sending the
threatening text messages to the victim on August 25, 2014,
and possessing a knife on his person at the time of his
arrest. He stated, however, that he did not intend to harm
9 Defendant was charged with three counts of aggravated
stalking (720 ILCS 5/12-7.4(a)(1) (West 2014)) and 21 other
offenses of which he was acquitted. We discuss here only the
facts that relate to the relevant aggravated stalking
10 Defendant waived his right to a jury, and the parties
tried the case before a judge. The State called the victim as
its first witness. She testified that defendant sent her a
series of threatening text messages in Spanish on August 25,
2014. The State introduced into evidence a series of
photographs of the victim's cell phone screen that
depicted text messages sent by defendant to the victim on the
date in question.
11 One of the photographs showed defendant texted the victim,
"[o]h, good, I have three knives. Let's see who I
can kill in your house, hon." When the victim sent a
message asking defendant where he was, defendant replied,
"[a]t your job[.] But You are not coming out *** where
12 Another photograph showed that defendant sent a message
telling the victim that her "mom arrived from
work." When the victim messaged defendant and asked
"[h]ow do you know that she arrived," he replied,
"I know a lot of things. Will you go to my house today
*** Or do you want problems with you father *** [s]o what,
Hon, do you want problems or not."
13 The State also introduced into evidence a photograph
defendant texted to the victim that depicted a knife wrapped
in aluminum foil in his waistband. Defendant wrote below the
photograph, "Yes, my love."
14 The victim further testified that defendant bruised her
arm, on August 21, 2016, when he tried to pull her into a
room in his house. She identified a photograph of ...