Court of Appeals of Illinois, First District, Second Division
from the Circuit Court of Cook County. No. 15 CR 6760
Honorable Frank Zelezinski, Judge, presiding.
E. Chadd, State Appellate Defender, of Chicago (Patricia
Mysza, Deputy Defender, and Michael Gomez, Assistant
Appellate Defender, of counsel), for defendant-appellant.
Kimberly M. Foxx, State's Attorney, of Chicago (Alan J.
Spellberg, Annette Collins, Veronica Calderon Malavia,
Assistant State's Attorneys, of counsel), for the People.
PUCINSKI JUSTICE delivered the judgment of the court, with
opinion. Justices Hyman and Mason concurred in the judgment
1 Following a bench trial, defendant Brian Crawford was found
guilty of stalking (720 ILCS 5/12-7.3(a)(1) (West 2014)) and
cyberstalking (id. § 12-7.5(a)(2)). The trial
court merged the counts and sentenced defendant on the
cyberstalking count to two years in prison. On appeal,
defendant contends we should vacate his conviction because
the cyberstalking statute under which he was convicted is
facially unconstitutional. He argues that subsection (a) of
the statute (1) violates due process because it allows a
felony conviction for the mere negligent infliction of
emotional distress and (2) violates the first amendment
because it is an overbroad prohibition on speech. We affirm.
2 I. BACKGROUND
3 Defendant was initially charged with one count of attempted
first degree murder, two counts of stalking, and four counts
of cyberstalking. The State proceeded at trial on single
counts of attempted first degree murder, stalking, and
4 The State charged defendant with stalking based on the
allegation that he made several phone calls and text messages
threatening to kill the victim and that he knew or should
have known that his course of conduct would cause a
reasonable person to fear for his or her safety. It charged
defendant with cyberstalking based on the allegation that he
sent the victim several threatening text messages saying he
was going to kill her and that he knew or should have known
that this course of conduct would cause a reasonable person
to suffer emotional distress.
5 At trial, Iceiss Sieler testified that, on March 25, 2015,
she had an "off and on" relationship with defendant
for over 18 years and had two children with him. Defendant
stayed at her apartment in Matteson, Illinois, about five to
six times per week. She was not in a long-term relationship
with him because she was pursuing a relationship with her
boyfriend, Jonathan.Sieler did not ask defendant to leave her
home because he did not have anywhere else to go and he was
helping support their children.
6 On March 25, 2015, Sieler first saw defendant at his hotel
room, where they had a sexual relationship and he gave her
rent money. They left the hotel to attend a parent-teacher
conference at their son's school, after which Sieler
dropped defendant off at his mother's house in Chicago.
Sieler told defendant she would pick him up that evening.
Sieler returned to her house, and at around 8:30 p.m., she
left to meet Jonathan in Chicago. When Sieler was with
Jonathan, defendant called her, but she did not answer
because she was having a good time and did not want to be
7 Defendant sent Sieler several text messages that night, and
she read them in court. At 2:36 a.m., defendant's text
messages stated: "U GONE DIE," "I WILL F***
MURDER U" and "Dont give a f*** who u tell."
At 2:46 a.m., defendant's text message stated: "GET
READY TO MEET YOUR MAKER. . . I know how much u love that
song (take me to the king) lets make it a reality" and,
at 2:47 a.m., he stated, "Join YO MFN MOMMA N YO COUSIN
B***." At 2:54 a.m., defendant's text messages
stated: "Its not a matter of 'if i catch u but
'when' and when i do, uts gone be ugly and im already
prepared to go *** jail for doing it."
8 Sieler testified that defendant's text messages did
"[n]ot really" upset her and she was not scared.
When Sieler was driving home to Matteson that night, she
stopped a police officer and asked him to escort her home
because she thought defendant was at her home and she did not
"feel like being bothered" with him. She testified
she was "highly intoxicated" and wanted defendant
out of her house so Jonathan could come over. When Sieler was
talking to the officer, defendant called her, and she put the
call on speakerphone. The officer followed Sieler home. When
Sieler arrived home, she asked her son, who was lying on the
couch, if he was okay and told the officer that
defendant's jacket was there. Defendant walked out of the
kitchen, which was about 20 feet away, with a knife in his
hands and stood there. Sieler testified that she physically
fought with defendant "pretty often" and defendant
had previously threatened to kill her. She did not take the
previous threats seriously.
9 Matteson police officer Murray testified that, on March 26,
2015, he was on patrol when Sieler got his attention and told
him she needed help. She was crying and upset and told him she
was scared to go home because her ex-boyfriend had sent her
threatening text messages. When Murray was talking with
Sieler, defendant called her, and she put the telephone call
on speakerphone. Murray heard defendant say to Sieler two
times "I will kill you." Sieler asked defendant why
he wanted to kill her, and he repeated, "I will kill
you," and ended the telephone call. Sieler asked Murray
to escort her home because she was concerned defendant was
there. Murray called Matteson police sergeant Ken Arvin for
backup, and they followed Sieler home.
10 Sieler fumbled with her keys and was shaking when she
opened her apartment door. There were two children sleeping
on couches in the living room. Sieler asked one of them if
everything was okay and told Murray that defendant's
jacket was on the chair. Defendant jumped out from around the
wall in the kitchen and growled. He was holding a knife in
his hands and was bending forward at his waist with his arms
extended out in front of him. Murray pointed his gun at
defendant and ordered him to drop the knife several times.
Defendant eventually dropped the knife and surrendered. When
Murray was placing defendant into custody, defendant stated
that they "could not keep him locked up forever"
and he "would get to her and it would not end well for
11 Matteson police officer Rankin testified that, on March
26, 2015, when he was processing defendant at the police
station, defendant stated "I would take care of
her." Rankin told defendant that he should not
threaten his girlfriend because he would have to document it.
Defendant told him it was okay, "it was already in the
text messages," and the "police cannot stop things
12 Matteson police sergeant Ken Arvin testified that, on
March 26, 2015, he entered Sieler's apartment with Sieler
and Murray. Later that day when defendant was in lockup,
defendant told Arvin that he was sorry for what had happened.
Arvin asked him, "Do you have any idea how close you
came to getting shot?" Defendant apologized and told
Arvin he thought "it was [Sieler] and her boyfriend and
did not realize that the police were in the apartment."
Matteson police detective Sean White testified that, on March
26, 2015, at 3:45 p.m., he spoke with defendant at the police
station in the presence of an assistant state's attorney.
He identified the videotaped statement that Sieler made, and
the State played portions of the video for purposes of
impeaching certain parts of Sieler's testimony.
13 The court granted defendant's motion for a directed
verdict with respect to the attempted first degree murder
count. Following argument, the court found defendant guilty
of stalking and cyberstalking. The court subsequently denied
defendant's motion for a new trial, merged the stalking
count into the cyberstalking count, and sentenced defendant
to two years in prison.
14 II. ANALYSIS
15 Defendant contends that, because subsection (a) of the
cyberstalking statute under which he was convicted allows a
felony conviction for the mere negligent infliction of
emotion distress, it sweeps in innocent conduct and therefore
violates due process. Defendant also contends that subsection
(a) violates the first amendment because it is an overbroad
prohibition on speech. After defendant filed his opening
brief and before the State filed its initial response brief,
our supreme court filed People v. Relerford, 2017 IL
121094, which addressed the constitutionality of subsection
(a) of the stalking and cyberstalking statutes. We allowed
the parties to file supplemental briefs.
16 Initially, we note that the trial court merged the
stalking count into the cyberstalking count and sentenced
defendant only for cyberstalking. In defendant's opening
brief, he argues we should vacate his convictions for
cyberstalking and stalking. However, in defendant's
supplemental brief, he withdrew his argument regarding the
stalking count and acknowledged that, because the trial court
did not impose sentence on the stalking count, we do not have
jurisdiction to decide the validity of defendant's
unsentenced guilty finding on the stalking count. See
id. ¶¶ 74-75.
17 We also note that, although defendant did not raise his
constitutional claims in the trial court, a party may raise a
challenge to the constitutionality of a statute at any time.
People v. Bryant, 128 Ill.2d 448, 454 (1989). Before
we address Relerford and defendant's claims, we
first discuss the relevant statutory provision in the
cyberstalking statute under which defendant was convicted.
18 A. Cyberstalking Statute
19 The cyberstalking statute, under which defendant was
convicted, stated, in relevant part:
"(a) A person commits cyberstalking when he or she
engages in a course of conduct using electronic communication
directed at a specific person, and he or she knows or should
know that would cause a reasonable person to:
(1)fear for his or her safety or the safety of a third
(2)suffer other emotional distress.
(a-3) 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; or
(3)at any time knowingly solicits the commission of an act by
any person which would be a violation of this Code directed
towards that person or a family member of that person."