late one hundred sixty day term can constitute a delay attributable to the defendant however neither of those factors occurred in this case at the time of the jury waiver the case had not been fed sat for a jury trial so there was no trial that needed to be reschedule  an opening before the judge for bench trial at the hearing on the motion to dismiss the judge did say that there were two weeks of jury trials that but for the waiver the case would have been se during that period however we don't know that the state would have been ready to go to trial and during either of those two weeks it's somewhat speculative moreover the case why spend separate bench trial in july sixteenth which was within the hundred sixty day term so the jury  two weeks ago and people versus pettus addressed a speedy trial where racial issue here brought by the state and reversed the  at the time of the jury wavered the case wasn't scheduled for a jury trial there was no rescheduling but the cases why does it matter that because that's what the case is fed interpret this whether it's a delay if you have to reschedule the trial then that could go to court that it's not enough that a defendant to me on trial you must also object to a proposed trouts trial date outside of the hundred sixty term which defense counsel did in this case defendant demanded trial and when the state asked for the continuance of the trial a defense counsel objected that objection was an objection to any date after july sixteenth his subsequent acquiescing to the august seventh trial date was merely acquiescing to a schedule of that day working within his schedule after clearly objecting to any date after july sixteenth and for that reason this  facially unconstitutional under the due process clause because it lacked a mens rea a requirement proffered is currently pending before the illinois supreme court and this court should reach the same conclusion that the the legislature has wide discretion to establish penalties for criminal offenses but the discretion is limited by the constitutional guarantee that a person must not be deprived of liberty with or to practice law a statue will be sustained if it bears a reasonable over the nation ship to a public interest to be served and the means adopted are reasonable method of accomplishing the desired objective the purpose of the newly added portion of the cyberstalking statute section a was to broaden the definition of the offense in an overall effort tech victims of violent attack who are often stopped before the attack the illinois supreme court has repeatedly held at a statute violates due process if it potentially subjects wholly innocent conduct to criminal penalty by not requiring a know that it would cause a reasonable person to suffer emotional desert it does not require criminal intent discovered criminal mileage and it does not require any criminal purpose section eighty two contains no requirement that the in individual actually inflicting the emotional stress on a person thereby bypassing the convention or tyrant of criminal conduct and awareness of some wrongdoing in a lioness the court found that having my ability turn on whether reasonable person would find the conduct emotionally distrustful regardless of what the defendant thinks reduces cup ability on the partner element of crime to negligence the lack of couple mental state is especially problematic in the context of cyberstalking today a significant amount of communication and political social and other issues occurs on line and his kind of review did idiosyncratic decontextualized and ambiguous as such it is susceptible to multiple interpretations making subjective intent especially necessary to ensure that the protected on line communication is neither punished her child because the statute potentially punishes a significant amount of innocent contact conduct not related to the statutes purpose it is not a rational the defendant's calculation was outside the one hundred sixty day period the reason to come to that conclusion is the second district in hampton which i cited in my brief they stated the to allow definite object to the state request for continuance without also objecting to the proposed trial date that is outside of the speedy trial term allows different to use speedy trial started as a weapon to avoid the threat of a conviction as the kordell supreme court case states speedy trial statute is to be used as a shield not as a sword here defense counsel is clearly lying in the weeds waiting to use this speedy trial issue as a sort he waited one day before trial and by his calculations the first day after the hundred sixty day period to bring this speedy trial issue to even mention any kind of speedy trial objection beforehand so clearly this issue is not only forfeited but waived and therefore plain air review isn't available however the trial court did correctly find the attributable to defendant delay between july ninth status hearing and aug seven  the july sixteenth june ninth july sixteenth forty three day period between the jury trial waiver and the first bench trial date was attributable to defendant and of course as pettis stated this is a bifurcated standard review that's clearly a matter of the trial court's discretion the trial court can obviously take you to notice that it's on the docket and the trial court stated on the record that the only reason this didn't go in late june hearing it reflected the trial court reflected that i mean it was ready to set a trial date obviously a set up for a bench trial the same hearing i did not been for the waiver of the jury trial at that hearing it would have gone on the next i'm guessing that that was not the case well if there's a lack of information on the record on this issue through again well there's not a lot of information as to why the delay because the jury the trial court stated that the delay was attributable to defend it for waiving a jury trial that at that time i assume for all intents and purposes everybody assumed that this was going to be a jury trial until june third right i understand that but doesn't appear that there is information in the record relative to the don't see it in the brain if you don't like what you're indicating here it's not in the reference the only information we have is the trial court's word that it was going to go in late june but for this jury trial lawyer clearly the only  y the only attributable person to the lay to attribute that delay to his defendant i mean the state didn't ask for opinions at that hearing or anything like that they asked for opinions later that was because of somebody on vacation my guess is they were also on only defense counsel only objected when prompted by the trial court and that was after the state that was after the state's continuance he did not then of ject again after the post trial date of august seventh he didn't say wait a minute this is outside of the speedy trial window he didn't say anything he said that's acceptable and then moved on to another month nothing from defense counsel nothing from the defendant then the day before the proposed trial is court's final justification for denying this motion to dismiss based on speedy trial was harmless error the traffic court stated that it would have used its authority under one of three bash five c to extend one hundred sixty day period another sixty days due to an on the bailable state witness it stated would have done that for the record of course undeveloped on that account however we do know that there was material state witness use of forensic examiner who examine five see the truck or stated it would use that authority therefore any harmless or any errors harmless beyond reasonable doubt even assuming that there hundred sixty day period had elapsed moving on to the constitutionality issue i first of all the supreme court in a long as didn't hold that specific statute was facially unconstitutional they only hold held that it was the jury with instructed improperly in fact they stated  stated there's no dispute that the mental state requirement in section eight seventy five c is satisfied if the defendant transmits a communication for the purpose of issuing a threat or with knowledge that the communication will be viewed as a threat in other words that reflects the exact statute cyberstalking when he gives of course conduct using like electronic communication directed a specific person and he knows or should know that would cause a reasonable person to fear for their safety or suffer other emotional distress the culpable mental state of knowledge applies not only to the course of conduct here it applies to the intended harm to the victim i think what threw the relevant court off is the fact that the phrase reasonable person is in this statute and of course that's a common i don't remember much civil law from law school but i remember the negligence standard is failure to use such care as a reasonable person would use under similar circumstances that definition the reasonable person is the actor or would be the defendant in a civil case the reasonable person in this statute is the victim it's not the defendant who has the reasonable person standard in this case it's maybe misleading for the legislature use the the term reasonable person however the reasonable person is describing the victim is not describing defendant defendant has to act with the knowledge that his course of conduct would cause a reasonable person in defendant's position or in the victim's position to fear for their safety or suffer other emotional distress clearly there's a culpable mental state of knowledge and aloneness supports that like i said they they stated that the mental state requirement satisfied if the defendant church transmits communication with the knowledge of the communication will be viewed as a threat of course there's more than just threat here the course of conduct has many surveilled threatens communicates anything that would cause a person to fear saying that reliford says as currently drafted subsection a two bypasses the dimensional requirement for criminal conduct awareness of some wrongdoing but that's just not the case that the statute has  to require the defendant to act with knowledge that this would cause a reasonable person do fear for their safety or suffer significant emotional distress so that's sort of in directly or through third parties this was communication directed specifically as the victim of the email i'm there for the this argument has no distance there's no reason to decide this as far as the disposition of this case is concerned say that the nicholson course say that the only speech this prohibited by the act of threats of violence or temptation which are not constitutionally protected then like i said taking into account that the defendant has to communicate or engage in this course of conduct whatever the course of conduct is with the knowledge that a reasonable person would be scared or fear for their safety or suffer emotional stress therefore this is not protected speech this is what like nicholson found this is a speech that is for hypotheticals the mere fact that one can conceive of some impermissible applications of a statute is not sufficient to render it susceptible to an overbroad challenge i think that's sound advice for the fanciful hypotheticals that could develop under any of these constitutional arguments it wasn't addressed in the scurries original argument but in her great she argues that there was a gap in the evidence that there him from calling an expert to refute this no one stopped in there from having someone testify that these guys are wrong there was no but as far as the record go this is the evidence that the trial court had there's nothing to nothing to suggest that it's just saying that there's a stand the same standard replies for all sufficiency of the evidence arguments and there's nothing to suggest that these guys methods were improper the way they investigated it isn't it they get from somewhere and then everything flows from there is that right i would say the smoking gun is different it's admission in this case more than the ip address defendant admitted that he created multiple e mail accounts one of which was named  jeffers which was this fake names used in the e mails of the victim i mean the only the only logical inference to make from this from this is that defendant was the one sending these e mails and especially i mean if even if we take the date outside of one hundred sixty days he's voices can his voice is objection to any date after july sixteenth he's voiced his objection to any date that's going outside of the term did not agree to a term outside the speedy trial ter he merely acquiesced to the trial court saying this is what we're going to do and interestingly at the hearing on the motion to dismiss this time period wasn't even at issue so the trial court didn't find that defense counsel isaacs in regard to the constitutionality argument a linus is a jury instruction issue it's that it wasn't a case where they were looking at the federal statute however the federal statute has a knowing intent it also requires the truth facts true threats it doesn't require it's not an emotional distress issue it's a it's a bad statute has been found to be constitutional here it was how the statute was how the jury was instructed regarding the statue at least requires that the defendant name knowingly engage in the course of conduct the cyberstalking statute doesn't have that an original knowingly engaging in that in the course of criminal conduct there's nothing criminal into there's no criminal intent required from the statute to find out that a reasonable reasonable person suffers motional the strength and remain talk about crazy hypotheticals but under the tiber stalking statute content based which is how the effect on the here so in the case of cyberstalking it's the effect on the whether it causes them emotional distress and so that does make it content based and the only