Opinion
No. 1-05-3288
June 13, 2007.
Appeal from the Circuit Court of Cook County, No. 04 CR 25402, The Honorable Bertina E. Lampkin, Judge Presiding.
Following a bench trial, defendant, Ricky Butler, was convicted of harassment of a witness and sentenced, as a Class X offender, to eight years' imprisonment. On appeal, defendant contends that the witness harassment statute is unconstitutionally overbroad and vague on its face. Defendant additionally contends that the State failed to prove him guilty of witness harassment beyond a reasonable doubt.
The evidence adduced at trial demonstrated that, on September 27, 2004, defendant was arrested in connection with a misdemeanor attempted theft. Chau Troung filed the related complaint after he and his employee, Cornelio Rivera, found defendant on the roof of Troung's business. The next day, at around 8 a.m., Troung and Rivera were inspecting the exterior building of the business when they noticed defendant walking across the street, approximately 20 to 25 feet away. At that time, defendant yelled "Mr. Troung, I will kill you. You filed a complaint against me. I'm going to kill you mother______s. I know what time you're leaving. *** I know what time you come in the morning." Throughout the rant, defendant pointed at both Troung and Rivera. Thereafter, Troung contacted the police and filed a second complaint against defendant. Defendant was subsequently arrested.
At trial, Troung and Rivera testified consistently with the above facts. Troung additionally testified that he never saw defendant with any weapons.
Officer Karlene Gurtowski testified that she responded to the initial report of attempted theft on September 27, 2004. She spoke to Troung at his place of business and arrested defendant after finding him hiding nearby. Troung also called Gurtowski the next day after the second incident with defendant. Gurtowski was not on duty at that time; however, she advised Troung to either call 911 or file a report at the police station. Gurtowski became aware of Troung's subsequent harassment complaint on October 3, 2004, and arrested defendant thereafter.
The trial court ultimately found defendant guilty of harassment of a witness. Specifically, the trial court determined that the instant case was a "classic harassment of a witness," in that Troung was a witness in a pending legal proceeding against defendant and defendant directly communicated a "harassing and knowing threat" to Troung and Rivera. Following a hearing, defendant was sentenced, as a Class X offender, to an eight-year prison term. This timely appeal followed.
Defendant first contends that the witness harassment statute is unconstitutionally overbroad and vague on its face. Specifically, defendant argues that the statute is overbroad because "it criminalizes a substantial amount of expression protected by the First Amendment" and is vague because it provides "an incomprehensible standard of conduct" and "authorizes arbitrary enforcement." The State responds that the statute is neither overbroad nor vague and is thus constitutional.
We review constitutional challenges to a statute de novo. People v. Greco, 204 Ill. 2d 400, 407 (2003). All statutes are presumptively constitutional, and the party challenging the validity of a statute bears the burden of rebutting that presumption by proving a clear constitutional violation. Greco, 204 Ill. 2d at 406. On review, where reasonably possible, a statute must be construed to uphold its validity and constitutionality. Greco, 204 Ill. 2d at 406.
The witness harassments statute, section 32-4a(a) of the Criminal Code of 1961 (Code) ( 720 ILCS 5/32-4a(a) (West 2004)), posits:
"A person who, with intent to harass or annoy one who has served or is serving *** (1) as a juror because of the verdict returned by the jury in a pending legal proceeding *** or (2) as a witness, or who may be expected to serve as a witness in a pending legal proceeding, *** because of the testimony or potential testimony of the witness ***, communicates directly or indirectly with the juror, witness or person who may be expected *** to serve as a witness *** in such a manner as to produce mental anguish or emotional distress or who conveys a threat of injury or damage to the property or person of any juror, witness or person who may be expected *** to serve as a witness *** commits a Class 2 felony."
Defendant initially argues that the witness harassment statute is overbroad because it criminalizes constitutionally protected speech. A court will deem a statute overbroad if the statute may reasonably be interpreted to prohibit conduct that is constitutionally protected. People v. Calvert, 258 Ill. App. 3d 504, 511 (1994). To result in a statute's invalidation, the overbreadth must be real and substantial. People v. Bailey, 167 Ill. 2d 210, 226 (1995). "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." Bailey, 167 Ill. 2d at 226.
We determine that defendant's facial overbreadth challenge fails because he cannot demonstrate that a reasonable interpretation of the statute punishes constitutionally protected speech. The statute protects jurors and witnesses involved in legal proceedings from harassment by individuals who, with the specific intent to harass or annoy, cause either of the specified results proscribed by the statute. See 720 ILCS 5/32-4a(a) (West 2004). Our supreme court was particularly instructive in People v. Williams, 133 Ill. 2d 449, 456 (1990), in announcing that "[a]ctivities which the State may otherwise validly proscribe are not drawn within the protection of the first amendment merely by virtue of the fact that some or all of their elements are verbal in nature." Defendant's hypotheticals describing potential situations where protected speech may be punished are unavailing. See Greco, 204 Ill. 2d at 407 (the party asserting the statutory challenge must demonstrate that no set of circumstances would be valid under the statute). The elements of the witness harassment statute containing speech are not constitutionally protected because the punishable speech is limited to situations where the specific intent element has been satisfied; the communication is directed at a juror because of his verdict or a witness because of his testimony; and must cause either mental anguish or emotional distress or convey a threat. See 720 ILCS 5/32-4a(a) (West 2004). Accordingly, we do not find that the statute at issue is so overbroad that "fear of punishment might discourage people from taking advantage of the freedom." See Bailey, 167 Ill. 2d at 226.
Defendant additionally argues that the statute is unconstitutionally vague on its face. To prevail on a vagueness challenge, the challenger must demonstrate that a person of ordinary intelligence would not have a reasonable opportunity to understand lawful versus unlawful conduct under the statute. Bailey, 167 Ill. 2d at 228, citing People v. Anderson, 148 Ill. 2d 15, 27-28 (1992). Despite the potential for vagueness as to other conduct, an individual may be prosecuted pursuant to the statute if his conduct clearly falls within that which is proscribed by the statute. Anderson, 148 Ill. 2d at 28.
In the instant case, defendant has failed to demonstrate that the witness harassment statute is vague. Defendant's direct threats to Troung and Rivera, potential witnesses in a future attempted theft proceeding, were clearly made with the intent to harass the individuals. Accordingly, defendant's conduct clearly falls within that proscribed by the witness harassment statute despite any other potential vagueness problems. See Anderson, 148 Ill. 2d at 28; see also 720 ILCS 5/32-4a(a) (West 2004).
Additionally, defendant cannot demonstrate that the witness harassment statute fails to provide citizens with adequate notice regarding the proscribed conduct thereunder or that it is nonstandard and subjective and leads to arbitrary enforcement. Unlike the statute at issue in Coates v. Cincinnati, 402 U.S. 611, 29 L. Ed. 2d 214, 91 S. Ct. 1686 (1971), the case relied upon by defendant, the instant witness harassment statute describes the proscribed conduct as clearly as possible and is not left to arbitrary enforcement. See also Calvert, 258 Ill. App. 3d at 512 ("[t]he conduct prohibited is couched in language which is as precise as possible, albeit lacking mathematical precision"). In Coates, the Supreme Court determined 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. On the contrary, the scope of punishable conduct under the instant statute is limited to a specified group, jurors or witnesses, and is further limited by the individual's specified intent to harass or annoy when communicating so as to inflict mental anguish or emotional distress or to convey a threat. We, therefore, conclude that the witness harassment statute is not unconstitutionally vague on its face.
Defendant next contends that the State failed to prove him guilty of witness harassment beyond a reasonable doubt, where no evidence was advanced which demonstrated that defendant's "threatening words actually created a threat sufficient to harass the witness." Instead, defendant argues that the evidence merely supported a conviction for the alleged lesser included offense of communicating with a witness. The State responds that the evidence was sufficient to support defendant's conviction.
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.) Jackson v. Virginia, 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789 (1979). 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, 209 (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 unsatisfactory, improbable or implausible" to raise a reasonable doubt as to the defendant's guilt. People v. Slim, 127 Ill. 2d 302, 307 (1989).
Viewing the evidence in a light most favorable to the State, we find that the State satisfied its burden. The evidence demonstrated that defendant returned to the exact location which had resulted in his arrest the prior day. Defendant found the complainant and the other individual that witnessed the alleged attempted theft, and, while walking approximately 20 to 25 feet away, shouted threats at them. Defendant knew the names of both men and referenced the fact that Troung had filed a complaint against him. Defendant threatened the men's lives, while stating that he knew when both men arrived and left work. We believe that this conduct is exactly what the legislature intended to protect when enacting the witness harassment statute. We, therefore, decline defendant's request to reduce his conviction to the offense of communicating with a witness. Cf. 720 ILCS 5/32-4(b) (West 2004).
Defendant argues that the State failed to satisfy its burden because no evidence was presented demonstrating an actual threat beyond his words alone or that Troung or Rivera actually perceived a treat. We note that nothing in the statute requires the defendant to accompany the threat with physical violence. People v. Berg, 224 Ill. App. 3d 859, 865 (1991). Moreover, a "single threatening statement" may support a conviction when the surrounding circumstances indicate that the threatening party is likely to carry out the threat. Berg, 224 Ill. App. 3d at 865. We conclude that the evidence sufficiently demonstrated that defendant approached Troung and Rivera, potential witnesses in a future legal proceeding, with the intent to harass them and threatened their lives. It may reasonably be inferred that defendant returned to Troung's place of business solely to execute his threat and he supported his noninnocuous threat to kill Troung and Rivera by acknowledging when the men arrived and left the building so that he could carry out the threat. See Calvert, 258 Ill. App. 3d at 508-10 (intent may be inferred from the surrounding circumstances). Accordingly, the evidence in the instant case was not "so unsatisfactory, improbable or implausible" to raise a reasonable doubt as to the defendant's guilt. Slim, 127 Ill. 2d at 307.
Accordingly, we affirm the judgment of the circuit court of Cook County.
Affirmed.
KARNEZIS, J., and CUNNINGHAM, J., concur.