People v. Swenson

                                        IN THE
                               SUPREME COURT
                                            OF
                         THE STATE OF ILLINOIS




                                   (Docket No. 124688)

               THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.
                         RORY SWENSON, Appellant.


                               Opinion filed June 18, 2020.



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

        Chief Justice Anne M. Burke and Justices Karmeier, Theis, and Michael J.
     Burke concurred in the judgment and opinion.

        Justice Neville dissented, with opinion, joined by Justice Kilbride.



                                        OPINION

¶1       Defendant Rory Swenson was convicted of disorderly conduct in the circuit
     court of Winnebago County after a telephone conversation with the advancement
     director of a private school. In that call, he asked about the school’s security
     measures and spoke extensively about shootings and violence. The conversation
     caused a soft lockdown at the school and a police response. We are called on to
     decide whether defendant’s speech was protected by the first amendment to the
     United States Constitution.


¶2                                     BACKGROUND

¶3       On December 7, 2015, defendant placed a call to Keith Country Day School
     (Keith), a private school in Winnebago County. He left a message for the director
     of advancement. When she called him back, he asked questions and gave statements
     about school security, mass shootings, and gun violence. These questions and
     statements disturbed and alarmed the director, who texted another administrator to
     call the police and lock down the school. Defendant was arrested and eventually
     charged with attempted disorderly conduct (720 ILCS 5/8-4(a), 26-1(a)(3.5) (West
     2014)), phone harassment (id. § 26.5-2(a)(2)), and disorderly conduct (id. § 26-
     1(a)(1)). The case proceeded to a bench trial.

¶4       The State called two witnesses. The first was the police officer who was
     dispatched to defendant’s home to investigate the call. He testified that he called
     defendant, who did not answer but came outside within a minute of the officer’s
     call. He said that defendant admitted calling the school to ask about security. He
     testified that he arrested defendant for disorderly conduct and placed him in the
     back of his police cruiser. He agreed that defendant was at all times cooperative
     and that defendant had also told him that he was trying to get information about the
     school because he was considering transferring his son there. He stated that, after
     he arrested defendant, defendant asked him to go into his apartment to get
     defendant’s seven-year-old son, who was inside. He testified that defendant told
     him, after he asked, that he had no guns in the apartment and that he did not see any
     in plain view when he entered.

¶5       The director of advancement, Monica Krysztopa, testified that she handles
     admissions, fundamental needs, and alumni relations at Keith. She stated that she
     had been at the school for a year and a half and that she fielded calls from parents
     looking to enroll their children at Keith. She testified that she returned to her office
     to a message from a man named Rory who asked her to return his call regarding
     admissions at Keith. She called the number left in the voicemail, and the individual
     who answered identified himself as defendant. Defendant stated that he had a son



                                              -2-
     that he would be interested in enrolling at Keith. She stated that defendant then
     “immediately went into a battery of questions about the protocol at our school for
     handling things that were related to guns and shooting.” She testified that he asked
     such questions as whether the secretary’s desk had bulletproof windows and how
     prepared she would be “if he or anyone *** arrived on our campus with guns.” She
     testified that he also “mentioned *** in passing that the United States was full of
     socialists and KGB members.” He asked if the school followed truancy laws.

¶6       Krysztopa stated that defendant mentioned the mass shooting in
     San Bernardino, which she testified was a week prior to the call. She testified that
     defendant asked her if she knew the number of shootings or the success rate of
     shooters once they were on campus. She said that he told her that it would be
     important for the school to know the success rate when an armed individual was on
     campus. She stated that he asked her, “[I]s Keith prepared? You know
     San Bernardino had happened the week prior and were we prepared for that, that
     day had it happened at our school that day.” The statement that stood out most to
     her was when he asked her if she “was prepared to have the sacrificial blood of the
     lambs of our school on our, on my hands, if this were to happen and what would I
     do?” She interpreted that question as asking her if she was prepared to have that
     blood on her soul or on her person. When asked to say exactly what defendant said
     about entering the school with a gun himself, as closely as she could, she testified
     that “[h]e said if he were to show up at the campus with a gun what would be the
     protocol of our school?” He asked, according to Krysztopa, whether the school gave
     teachers “PEZ dispensers to defend themselves” and what the students would think
     “of seeing a gun pointed in their teacher[’]s face.”

¶7       According to Krysztopa, he continued by asking “if teachers were prepared to
     have a gun in their face” and whether they carried guns. “[H]e talked about a
     number of guns and their success rate in kill.” She stated that he asked her “how
     long it would take the police to get to Keith School should there be a shooting.”
     Her “impression was, to be perfectly honest, that he was on our campus.” She
     testified that she got that impression based on two specific questions: “the one about
     me being prepared to have the blood of the sacrificial lambs on my hands that day
     and if we were prepared to handl[e] something like San Bernardino that day. And
     he spoke of the woods around the campus.” After refreshing her recollection with
     her notes, Krysztopa testified that defendant




                                             -3-
        “was talking about when you shoot and kill children and you’re looking them
        in the eye and their innocence and the pillows of laying their heads down at
        night and then you have a shooter who shoots them in the face, you know, what
        does that do for me as a school? How do we protect them from that?”

     She thought that he “wanted to know if [she] would sniff the pillow of their
     innocence after they’ve been dead.” At the end of the conversation, Krysztopa said
     that defendant asked if the conversation was being recorded. She said that she “was
     trying to be light” and told him that “we have copiers that don’t even work in our
     school. I’m not recording this.” She said that he “went on and said, again, asking
     about our protocol, how we handle shooters *** and I was talking with him [when]
     he did say he had to go, the conversation was done and he hung up.”

¶8        Krysztopa testified that, during the conversation, she texted the head of the
     school, telling her “[t]here’s someone talking about guns and the safety of the
     school, call 911.” Someone called 911, and the school went into a soft lockdown,
     which she described as a situation in which students were put into closed
     classrooms with an adult present to account for each student and determine a count
     of the entire student body. She stated that this was the only time the school had
     entered a soft lockdown in the year and a half that she worked there. With an officer
     dispatched to defendant’s home and two officers on campus, she testified that,
     because it was close to dismissal time, they dismissed the students. Fifteen minutes
     after dismissal, the school sent a letter to parents informing them that a threat had
     been made without going into detail about the threat. She later clarified that she
     initiated the police contact for two reasons: (1) because she thought defendant was
     on the campus, which she posited would mean there was an active shooter on
     campus, and (2) because she did not know why defendant shared with her that he
     had been kicked out of Keith as a child, which led her to think that he was an active
     shooter on campus.

¶9       On cross-examination, Krysztopa agreed that the voicemail stated that
     defendant was interested in talking about admissions and potentially transferring
     his son to Keith. When she called him, he told her that his son was in second grade
     and that he was looking to transfer him from Rockford Public Schools. She testified
     that he mentioned “that he was concerned about the security protocols in the public
     schools.” She did not know any other intention for the call than defendant’s




                                             -4-
       intention to transfer his son from the public school to a private school. She said that
       defendant never told her that he had guns nor did he say he was coming to the
       school with guns; rather, she agreed, “[h]e asked what would happen if someone
       came to the school with a gun.” She stated that defendant did not make an
       immediate threat.

¶ 10       At the close of the State’s case, defendant moved for a directed verdict on all
       counts. The trial court granted that motion as to the phone harassment charge but
       not the disorderly conduct or attempted disorderly conduct counts.

¶ 11       Defendant testified that his son was seven years old at the time of the call and
       that he was enrolled in second grade at a public school. He testified that he was
       concerned with security in the public school system and considered enrolling his
       son in “what [he] believed would be a privatized institution of learning where they
       weren’t bound by budgeting restrictions used as an excuse not to protect our
       children.” Keith was the first on his list, followed by two religious schools. He
       stated that he called Keith and received a call back from Krysztopa. He continued
       that he “asked [about] two things”: “financial aid because I’m a single parent” and
       “the security protocol.” Information about these two things, he said, was the
       purpose of his call. Regarding the security protocol, he asked if Krysztopa could
       even talk to him about it over the phone; “[i]f need be, when I come to fill out the
       financial aid information, I can talk to you about it then is exactly what I said to
       her.” He said that he told Krysztopa that his intent was to enroll his son in the school
       and that he included that statement in the voicemail message. He stated that he
       “absolutely” did not threaten anyone and that he “absolutely” did not say that he
       was going to bring a gun to the school. He testified that he did not have a Firearm
       Owner’s Identification card or own any weapons and that he told this to the
       responding officer. He also testified that he allowed the officer into his home.

¶ 12       On cross-examination, defendant testified that he asked about the school’s
       programs, such as whether they “still taught foreign languages for young children”
       and “[i]f they still had the art room.” He said that he asked about the curriculum but
       not about the students’ schedules. He said that “if there was a security protocol
       issue with me talking to her over the phone that I would be more than willing to
       come in and talk with her when I fill out the financial aid papers for the financial
       aspect of enrolling my son in the school.” He admitted that he asked whether




                                                -5-
       teachers carry guns, but he denied asking whether he would be shot and killed if he
       came into the school and started shooting. He also denied asking what a child’s life
       was worth and answering himself that a child’s life was worth $67,000. Rather, he
       testified, he explained that “if they would fire a teacher for a $67,000 salary cap
       and hire an off-duty police officer that they would be able to protect children with
       a response time which would lower the casualty rate by 73 to 86 percent should
       there be an active shooter scenario at any school.” He again denied asking what
       would happen if he were to enter the school with a gun. In response to a question
       asking whether he said that it would take two to four minutes for police to arrive at
       the school, he explained that “general protocol for my son’s school that a two- to
       four-minute-response time was inadequate for what I thought should be my job as
       a parent to protect my son at school when I am not there to be able to do that.” He
       also denied asking Krysztopa if she was ready to see the blood of the sacrificial
       lamb, claiming that he said “if the liberal left wants to make me their sacrificial
       lamb so be it. Then the blood is on their hands next time there is a school shooting
       in regards to civil ramifications.” He also explained that his concern with his son’s
       current school was that “nothing more than a piece of quarter inch glass separates
       our children *** from an active shooting scenario.” After agreeing that Keith was
       the first school that he called, he stated that he also called the two religious schools
       in the time between leaving a message at Keith and receiving the call back.
       Defendant testified that, when the police arrived, he went outside to “see what was
       going on” and, when asked by the officer, explained that he “called to enroll my
       son in a school and [Krysztopa] took [defendant’s] political affiliation and spun it
       out of context.”

¶ 13       After closing argument, the trial court found all three witnesses to be credible.
       It found that, where defendant’s and Krysztopa’s testimony conflicted, hers was
       more credible. Regarding the attempted disorderly conduct, the court found that
       defendant did not make a threat and acquitted him of that charge. Regarding the
       disorderly conduct charge, the court again stated that it did not think that defendant
       was threatening the school but found that he acted in an unreasonable manner. The
       court found that Krysztopa was alarmed and disturbed and that defendant should
       have known that she would be disturbed. The judge expressly found that the
       unreasonableness was in the nature of the questions defendant asked. He further
       found that defendant knowingly acted unreasonably and convicted him of
       disorderly conduct. Defendant was sentenced to two days in jail with credit for two



                                                -6-
       days served, a term of probation, and a fine. The appellate court affirmed. 

, ¶ 29. We granted leave to appeal. Ill. S. Ct. R. 315 (eff. July 1,
       2018).


¶ 14                                       ANALYSIS

¶ 15       Defendant was convicted of disorderly conduct. “A person commits disorderly
       conduct when he or she knowingly: (1) Does any act in such unreasonable manner
       as to alarm or disturb another and to provoke a breach of the peace[.]” 720 ILCS
       5/26-1(a)(1) (West 2014).

¶ 16       Defendant asserts that the only conduct in which he engaged was speech. He
       argues that his speech was protected by the first amendment to the United States
       Constitution, that the courts below misunderstood the requisite mental state, and
       that the appellate court incorrectly applied this court’s decision in People v. Raby,
       

 (1968). We first address defendant’s contentions of first amendment
       protection.


¶ 17                               First Amendment Protection

¶ 18       “The first amendment, which applies to the states through the fourteenth
       amendment, precludes the enactment of laws ‘abridging the freedom of speech.’ ”
       People v. Relerford, 

 (quoting U.S. Const., amends. I, XIV).
       Because of this restriction, the “ ‘government has no power to restrict expression
       because of its message, its ideas, its subject matter, or its content.’ ” United States
       v. Alvarez, 

 (2012) (quoting Ashcroft v. American Civil Liberties
       Union, 

 (2002)).

¶ 19       The constitutionality of a statute presents a legal question that we review
       de novo. People ex rel. Hartrich v. 2010 Harley-Davidson, 

.
       The trial court’s underlying credibility and factual findings, however, are reversed
       only if they are against the manifest weight of the evidence. 

 Defendant does not
       claim that the statute is facially unconstitutional but instead makes an as-applied
       challenge, which “asserts that the particular acts which gave rise to the litigation
       fall outside what a properly drawn regulation could cover.” Vuagniaux v.




                                                -7-
       Department of Professional Regulation, 

 (2003). In an as-
       applied challenge, the challenging party “protests against how an enactment was
       applied in the particular context in which the [party] acted or proposed to act, and
       the facts surrounding the [party’s] particular circumstances become relevant.”
       Napleton v. Village of Hinsdale, 

 (2008).

¶ 20       We first consider whether defendant’s discussion with Krysztopa constituted
       speech or expression as contemplated by the first amendment. Although defendant
       ostensibly called to inquire about enrolling his son at Keith, he asked rhetorical
       questions such as whether Krysztopa would sniff the pillows of schoolchildren’s
       innocence if they were shot. He told the responding officer that Krysztopa “took
       [his] political affiliation and spun it out of context.” Although we do not doubt that
       defendant indeed called to gather information and potentially enroll his son at the
       school sometime in the future, he also intended some of his questions and
       statements to express his sentiments about the state of school security in general, at
       Keith, or both.

¶ 21       Moreover, we agree that defendant did not engage in any conduct other than
       speech. In Raby, this court held that “[u]nder no circumstances would the
       [disorderly conduct] statute ‘allow persons to be punished merely for peacefully
       expressing unpopular views.’ ” Raby, 

 (quoting Cox v. Louisiana,
       

 (1965)). Our appellate court has cited this statement to support
       what it calls “the long-standing principle that speech alone cannot form the basis
       for a disorderly conduct charge.” People v. Rokicki, 

       (1999). Another panel stated the holding more accurately: “[i]n Raby, our supreme
       court rejected the proposition that the disorderly conduct statute punishes speech
       protected by the first amendment.” People v. Nitz, 

 (1996).
       Because the only action in which defendant engaged was speech and because the
       disorderly conduct statute cannot criminalize protected speech, defendant’s
       conviction can stand only if his speech was unprotected.

¶ 22      Our first step is to determine whether the statute, as applied to defendant, is a
       content-based speech restriction. “Government regulation of speech is content
       based if a law applies to particular speech because of the topic discussed or the idea
       or message expressed.” Reed v. Town of Gilbert, 

, ___, 

 (2015). A statute restricting speech is content based if “it is the content




                                               -8-
       of the speech that determines whether it is within or without the statute’s blunt
       prohibition.” Carey v. Brown, 

 (1980); see also People v. Jones,
       

 (1999) (citing Carey, 

). There is no question
       that it was the content of defendant’s speech that alarmed and disturbed Krysztopa.
       He could have asked about school lunches, classes, asbestos pipes, tuition, the
       school day, or just about any other subject, and she would not have become alarmed
       and disturbed. It was the topic of guns, violence, and school safety—the content of
       his speech—that led to the alleged breach of the peace.

¶ 23       “Content-based laws—those that target speech based on its communicative
       content—are presumptively unconstitutional and may be justified only if the
       government proves that they are narrowly tailored to serve compelling state
       interests.” Reed, 576 U.S. at ___, 

 (citing R.A.V. v. St. Paul, 

 (1992)). There exist, however, “ ‘certain well-defined and narrowly
       limited classes of speech, the prevention and punishment of which have never been
       thought to raise any Constitutional problem.’ ” Beauharnais v. Illinois, 

 (1952) (quoting Chaplinsky v. New Hampshire, 

       (1942)). Content-based restrictions on these categories of speech do not fall within
       the protection of the first amendment and have been upheld. People v. Ashley, 

 (citing United States v. Stevens, 

 (2010)). Of the
       handful of exceptions, only two could potentially apply here: the “true threats”
       exception (Virginia v. Black 

 (2003); Ashley, 

) and the “fighting words” exception (Beauharnais, 

).


¶ 24              The True Threats Exception to First Amendment Protection

¶ 25       The “accepted categories of unprotected speech include true threats, which may
       be banned without infringing on first amendment protections.” Ashley, 

. “ ‘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.” Black, 

;
       Ashley, 

. “ ‘The speaker need not actually intend to carry out
       the threat. Rather, a prohibition on true threats “protect[s] 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.” ’ ” Ashley,




                                                -9-
       

 (quoting Black, 

, quoting R.A.V., 

).

¶ 26       We first note that the trial court acquitted defendant of attempting to threaten
       the school or its employees. That charge is not before us. In convicting him of
       disorderly conduct, the court stated again that it knew “[he] wouldn’t threaten
       them.” In cases in which “the question is one of alleged trespass across the line
       between speech unconditionally guaranteed and speech which may legitimately be
       regulated,” however, “the rule is that we examine for ourselves the statements in
       issue and the circumstances under which they were made to see . . . whether they
       are of a character which the principles of the First Amendment, as adopted by the
       Due Process Clause of the Fourteenth Amendment, protect.” (Internal quotation
       marks omitted.) New York Times Co. v. Sullivan, 

 (1964); see also
       Miller v. California, 

 (1973) (“[T]he First Amendment values
       applicable to the States through the Fourteenth Amendment are adequately
       protected by the ultimate power of appellate courts to conduct an independent
       review of constitutional claims when necessary.”); Bose Corp. v. Consumers Union
       of United States, Inc., 

 (1984) (“The requirement of
       independent appellate review reiterated in New York Times Co. v. Sullivan is a rule
       of federal constitutional law. *** It reflects a deeply held conviction that judges—
       and particularly Members of [the Supreme Court]—must exercise such review in
       order to preserve the precious liberties established and ordained by the
       Constitution.”). We thus independently examine the record and assess the
       testimony to determine whether a first amendment exception applies.

¶ 27       The parties, noting the split among other jurisdictions, disagree as to the mental
       state requirement for conveying a true threat. After submission of their briefs and
       oral argument, however, we have resolved that issue in Illinois. We recently held
       that, to make a true threat, a defendant must act with either a “specific intent or a
       knowing mental state.” Ashley, 

. Thus, the accused does not
       have to act with specific intent to threaten the victim (id. ¶ 50) but “must be
       subjectively aware of the threatening nature of the speech” (id. ¶ 56). Although
       criminal liability cannot be predicated solely on the effect on the listener, the effect
       is something the court must consider. 

 ¶ 67 (citing Elonis v. United States, 575
       U.S. at ___, 

). Given the recency of that opinion, we need not
       repeat its reasoning.




                                                - 10 -
¶ 28        Krysztopa testified that defendant asked her if she was “prepared to have the
       blood of the sacrificial lambs on [her] hands that day.” (Emphasis added.) He asked
       “if teachers were prepared to have a gun in their face.” He asked her “how long it
       would take the police to get to Keith School should there be a shooting.” He
       expressed familiarity with the school campus and asked how prepared she would
       be “if he or anyone *** arrived on our campus with guns.” (Emphasis added.)
       Although defendant disputes that he made some of these statements, the trial court
       found Krysztopa to be the more credible witness. Notably, although we
       independently review the record to assess the applicability of exceptions to first
       amendment protection (Sullivan, 

), the trial court’s decision to
       accept testimony remains entitled to great deference (Hartrich, 

; People v. Cunningham, 

 (2004); People v. Phelps, 

 (2005) (citing Jackson v. Virginia, 

 (1979))).

¶ 29       Regarding defendant’s mental state, the trial court found that he did not
       specifically intend to threaten the school when it acquitted him of attempted
       disorderly conduct. The court’s admonishment to defendant in convicting him of
       disorderly conduct, however, makes clear that it found that he was subjectively
       aware of the threatening nature of his speech: “You don’t expect that she’s going
       to be alarmed and disturbed? You would be alarmed and disturbed. I submit that
       you would be alarmed and disturbed if your child was there and you knew there
       was such a call.”

¶ 30       We agree. Defendant pointed out what he perceived to be inadequacies in the
       security measures Keith had taken by presenting graphic hypothetical scenarios
       that, by design, communicated to the listener “a serious expression of an intent to
       commit an act of unlawful violence to a particular individual or group of
       individuals.” Black, 

; Ashley, 

. Whether
       defendant intended to carry out the acts is irrelevant; he meant to intimidate
       Krysztopa by impressing upon her “ ‘ “the possibility that the threatened violence
       will occur.” ’ ” Ashley, 

 (quoting Black, 

-60
       (quoting R.A.V., 

)). Indeed, defendant’s intention in presenting these
       scenarios to Krysztopa was to alert her that they could happen in spite of the
       measures Keith had taken. He conveyed his opinion about the insufficiency of these
       measures by frightening Krysztopa.




                                              - 11 -
¶ 31       Regarding the effect on the listener, the trial court found that Krysztopa was
       alarmed and disturbed. In this situation, the only way she would have been alarmed
       and disturbed is if she perceived defendant’s questions and statements as a threat to
       the school’s safety. These statements are objectively threatening, given the
       circumstances in which they were made—to a school administrator in her official
       capacity at a school full of students and teachers five days after a highly publicized
       mass shooting and during an era in which school administrators must be concerned
       with individuals who pose such threats. Krysztopa was reasonable in perceiving
       these statements and questions as a threat.

¶ 32       In sum, defendant’s questions and statements were objectively threatening in
       the circumstances in which they were given. Defendant was subjectively aware of
       the threatening nature of his speech. Krysztopa reasonably perceived defendant’s
       questions and statements as a threat. We find that his speech constituted a true threat
       unprotected by the first amendment.

¶ 33       Because we find that defendant’s speech fell within the “true threats” exception,
       we need not address the parties’ contentions regarding other exceptions to first
       amendment speech protection. We next turn to the sufficiency of the evidence
       presented.


¶ 34                                Sufficiency of the Evidence

¶ 35       “When considering a challenge to a criminal conviction based upon the
       sufficiency of the evidence, this court will not retry the defendant.” People v. Smith,
       

 (1999). Rather, a reviewing court will set aside a conviction
       only where the evidence is so improbable or unsatisfactory that it creates a
       reasonable doubt of the defendant’s guilt. People v. Collins, 

       (1985). Where the defendant challenges the sufficiency of the evidence used to
       convict him, the reviewing court must determine, considering the evidence in the
       light most favorable to the prosecution, whether any rational trier of fact could have
       found the essential elements met beyond a reasonable doubt. Smith, 

. All reasonable inferences are drawn in favor of a finding of guilt. Cunningham,
       

.




                                               - 12 -
¶ 36        The trier of fact determines the credibility of the witnesses, decides what weight
       to give their testimony, resolves conflicts in the evidence, and draws reasonable
       inferences from that evidence. Phelps, 

 (citing Jackson, 

). Credibility determinations are entitled to great weight. Smith, 

. “In cases where the evidence is close ***, where findings of fact must be
       determined from the credibility of the witnesses, a court of review will defer to the
       trial court’s factual findings unless they are against the manifest weight of the
       evidence.” Kalata v. Anheuser-Busch Cos., 

 (1991); see also
       Hartrich, 

 (citing Kalata, 

). “[T]he testimony
       of just one credible witness is sufficient for conviction.” City of Chicago v. Morris,
       

 (1970).

¶ 37       The State needed to prove that defendant knowingly engaged in an act in such
       an unreasonable manner as to alarm or disturb another and to provoke a breach of
       the peace. See 720 ILCS 5/26-1(a)(1) (West 2014). “ ‘[T]he gist of the offense is
       not so much that a certain overt type of behavior was accomplished, as it is that the
       offender knowingly engaged in some activity in an unreasonable manner which he
       knew or should have known would tend to disturb, alarm or provoke others.’ ”
       Raby, 

 (quoting Ill. Ann. Stat., ch. 38, ¶ 26-1, Drafting Committee
       Comments (Smith-Hurd 1967)). “The ‘type of conduct alone is not determinative,
       but rather culpability is equally dependent upon the surrounding circumstances.’ ”
       In re B.C., 

, 552 (1997) (quoting 720 ILCS 5/26-1, Committee
       Comments-1961, at 337 (Smith-Hurd 1993)).

¶ 38       As we described above, defendant assailed Krysztopa with a battery of morbid
       and morose questions and statements about killing schoolchildren and sticking guns
       in teachers’ faces until the police arrived at his home. Although defendant disputes
       that he made some of these statements, the trial court found Krysztopa to be the
       more credible witness. Where the only witnesses to the substance of a conversation
       are the two parties to that conversation and the trial court found one more credible
       than the other, we decline to find that the court’s credibility finding was against the
       manifest weight of the evidence, especially where that witness had taken
       contemporaneous notes and the trial court expressly noted that it observed “her
       demeanor while testifying.”




                                               - 13 -
¶ 39       The trial court found the elements of disorderly conduct met. It found the nature
       of the questions defendant asked to be unreasonable, that Krysztopa was alarmed
       and disturbed, that she reasonably felt that way, and that defendant’s questions and
       statements provoked a breach of the peace by way of the lockdown and police
       response. It found that defendant acted knowingly.

¶ 40       We agree. Defendant knowingly engaged in the series of questions and
       statements that form the basis for the conviction in an unreasonable manner that he
       knew or should have known would cause alarm to a school administrator. He
       unreasonably subjected Krysztopa, in her official capacity as a school
       administrator, to a rapid-fire succession of graphic questions and statements about
       such things as shooting schoolchildren and sticking guns in teachers’ faces,
       understandably alarming and disturbing her. His questions and statements directly
       resulted in a breach of the peace by way of a school lockdown and police response.
       We find that a rational trier of fact could conclude beyond a reasonable doubt that
       defendant committed the offense of disorderly conduct. We do not find the evidence
       so improbable or unsatisfactory that it creates a reasonable doubt about his guilt.
       We thus find the evidence sufficient and affirm defendant’s conviction.


¶ 41                                     CONCLUSION

¶ 42       We find that a rational trier of fact could conclude that the elements of
       disorderly conduct were proven beyond a reasonable doubt and that the evidence
       was not so improbable or unsatisfactory as to create a doubt about defendant’s guilt.
       We further find that defendant’s questions and statements constituted a true threat
       such that his speech was not protected by the first amendment to the United States
       Constitution. The statute was thus constitutional as applied to defendant’s conduct.


¶ 43      Affirmed.


¶ 44      JUSTICE NEVILLE, dissenting:

¶ 45      I agree with the court’s recitation of the law governing the analysis of whether
       speech is exempt from first amendment protection because it falls within the “true




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       threat” exception. I disagree, however, with the application of those controlling
       principles to the facts presented in this case. Accordingly, I respectfully dissent.

¶ 46       As this court unanimously recognized in People v. Ashley, the true threat
       exception encompasses “ ‘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.’ ” 

 (quoting Virginia v.
       Black, 

 (2003)). When defendant’s speech is analyzed in
       accordance with these strictures, it is clear to me that his communication with
       Krysztopa does not constitute a true threat.

¶ 47        First, as Krysztopa’s own testimony establishes, defendant expressly stated that
       his reason for calling was to inquire about enrolling his son at the school and to
       explore its security protocols and approach to potentially violent situations. There
       is no evidence to the contrary or even suggesting that he called for any other
       purpose. When considered in the context of a parent’s inquiry about the transfer
       and enrollment of his or her child, questions regarding school safety and security
       measures are not inherently unreasonable. In addition, Krysztopa’s testimony
       confirms that virtually all of defendant’s communications regarding the possible
       enrollment of his son at the school and its safety procedures were expressed in the
       form of questions—posing hypothetical situations and requesting answers as to
       how such situations would be handled in order to protect the safety of all students.
       The context of defendant’s communication—an inquiry about school enrollment—
       and the hypothetical nature of many of his questions regarding student safety are
       critical in assessing whether his speech constitutes a true threat. See Watts v. United
       States, 

 (1969) (recognizing that, in distinguishing a threat
       from constitutionally protected speech, the context of the speech, its conditional
       nature, and the reaction of the listeners are determining factors). In my view, these
       factors are not properly considered by the court’s opinion.

¶ 48       Second, though I agree that the effect on the listener must be considered (see
       supra ¶ 30 (citing Ashley, 

); supra ¶ 31), I disagree with the
       court’s conclusion that defendant’s questions and statements to Krysztopa were
       “objectively threatening” (supra ¶ 31). If that were the case, Krysztopa’s perception
       of defendant’s communication would be irrelevant. And even more important is the
       fact that Krysztopa’s own description of defendant’s communication refutes the




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       conclusion that it was a true threat. Her undisputed testimony confirms that
       defendant did not make an immediate threat, and he never said he had a gun or that
       he was coming to the school with a gun. Indeed, review of Krysztopa’s testimony
       demonstrates that defendant never said that he intended to do anything at all.
       Rather, defendant, a single father of a school-age child, expressed his concerns
       about school safety and the security protocols in place in public schools that were,
       in his view, inadequate to protect the students.

¶ 49       While defendant’s questions and comments may be seen as excessive and
       troubling, they do not contain the requisite elements of a true threat. Here, the
       court’s opinion equates defendant’s questions and statements about school
       shootings and safety measures with a serious expression of an intent to commit an
       act of unlawful violence to a particular individual or group of individuals. Compare
       Ashley, 

, with supra ¶ 30. My colleagues in the majority agree
       with the circuit court’s characterization of defendant’s communications as
       unreasonable, alarming, and disturbing and, on that basis, find them to qualify as
       true threats. But many types of communications may be unreasonable, alarming,
       and disturbing without being true threats. What is missing in this case is evidence
       of the critical element—a serious expression of intent to commit an act of unlawful
       violence.

¶ 50        A single communication with an advancement director about the possible
       transfer of his son and the school’s safety protocols served as the catalyst for the
       prosecution. That communication—and the lack of any actual threat of violence—
       is in stark contrast to the facts presented in Ashley. In that case, the defendant sent
       numerous text messages specifically directed at the victim that included threats of
       physical harm or death as well as a picture of a gun. Ashley, 

. For example, the defendant in Ashley sent the victim text messages stating “ ‘I
       love you too much to see u dead dummy. But [I] guarantee u this. I can make u
       suffer. If [I] want to. *** You rite start to think more before u talk that s*** will
       get u hurt or killed ***. *** I hope whoever you got it when I got guns’ ” Id. ¶ 9.
       He also telephoned the victim and specifically threatened to “come over and kill”
       her, and everyone else who was present at her apartment, with a gun. Id. ¶¶ 5, 100.
       Here, none of defendant’s questions or comments pertaining to hypothetical
       situations involving possible school shootings are even remotely comparable to the
       threatening speech that was at issue in Ashley. Unfortunately, the majority does not




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       acknowledge the substantial evidence of threatening speech presented in Ashley, let
       alone explain how defendant’s speech meets the standard applied in Ashley.

¶ 51       While Krysztopa’s apprehension and reaction to defendant’s speech may be
       perfectly understandable, this case considers only whether the State can criminalize
       defendant’s pure speech as a “true threat.” Notably, this court and the United States
       Supreme Court have narrowly construed the true threat exception to first
       amendment protection for pure speech. Black, 

; Ashley, 

. And for good reason—the first amendment broadly protects the rights
       of all citizens to engage in meaningful discussion and debate on important societal
       issues, such as the question of whether a school is adequately protecting its students
       from the dangers of a potential mass shooting. Many of the complicated problems
       facing our society have the potential to result in serious debate and, at times,
       emotional rhetoric. Absent a serious expression of an intent to commit an act of
       unlawful violence, however, even the most passionate speech cannot be
       criminalized as a true threat without violating the first amendment. Black, 

; Ashley, 

; see also Watts v. United States, 

 (1969) (per curiam) (explaining that a statute that “makes criminal a form of
       pure speech must be interpreted with the commands of the First Amendment clearly
       in mind. What is a threat must be distinguished from what is constitutionally
       protected speech.”).

¶ 52       Nonetheless, the majority has allowed the State to use the disorderly conduct
       statute to criminalize defendant’s speech because Krysztopa was alarmed or
       disturbed by his speech. In other words, the majority has effectively eliminated the
       well-settled requirement that a “true threat” include a serious expression of an intent
       to commit an act of unlawful violence. Black, 

; Ashley, 

. The majority’s watered-down interpretation of a “true threat” has
       never been endorsed by the United States Supreme Court and, until today’s
       decision, not by this court either.

¶ 53       Instead, we have long recognized that the disorderly conduct statute should not
       be used to punish persons “ ‘merely for peacefully expressing unpopular views.’ ”
       People v. Raby, 

 (1968) (quoting Cox v. Louisiana, 

 (1965)). The result reached in the majority’s opinion, however, criminalizes
       defendant’s speech because certain of his questions or statements were viewed by




                                               - 17 -
       Krysztopa as alarming or disturbing. It is worth emphasizing that, according to
       Krysztopa’s undisputed testimony, defendant did not make any threats to her, and
       he did not state that he had a gun or intended to come to the school. The majority’s
       analysis ignores the bare facts set forth in Krysztopa’s testimony. Contrary to the
       court’s unfounded conclusion, Krysztopa did not perceive defendant’s
       communication as a threat.

¶ 54       Based on the evidence in the record, defendant’s questions and statements may
       be both alarming and disturbing, but they are not true threats because they do not
       contain a serious expression of an intent to commit an act of unlawful violence. See
       Black, 

; Ashley, 

. Because defendant’s
       statements do not qualify as a true threat, they do not fall into the exception and are
       not excluded from first amendment protection. Since his comments are protected
       speech, they cannot be prosecuted under the disorderly conduct statute. I would find
       the disorderly conduct statute to be unconstitutional as applied to defendant.

¶ 55      Consequently, I respectfully dissent.

¶ 56      JUSTICE KILBRIDE joins in this dissent.




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