2014 IL App (2d) 121080

No. 2-12-1080

Opinion filed June 16, 2014

______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

______________________________________________________________________________

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court

OF ILLINOIS, ) of Kane County.

)

Plaintiff-Appellee, )

)

v. ) No. 11-CF-858

)

DANIEL T. DIOMEDES, ) Honorable

) James C. Hallock,

Defendant-Appellant. ) Judge, Presiding.

______________________________________________________________________________

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

Justices Zenoff and Birkett concurred in the judgment and opinion.

OPINION

¶ 1 After a bench trial, defendant, Daniel T. Diomedes, was convicted of disorderly conduct

for knowingly transmitting by e-mail a threat of violence directed against a high school dean. 

720 ILCS 5/26-1(a)(13) (West 2010).

1

 On September 27, 2012, the court sentenced defendant to 

30 months of probation and 365 days of electronic home monitoring. On appeal, defendant 

argues that we must reverse his conviction because the evidence was insufficient to establish that 

 1 The statute has since been amended and renumbered such that section 26-1(a)(13) is 

now section 26-1(a)(3.5). See Pub. Act 97-1108, § 10-5 (eff. Jan. 1, 2013). Nevertheless, we 

refer herein to section 26-1(a)(13), as it is the section under which defendant was convicted.
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he knowingly transmitted a threat and because the e-mail forming the basis of his conviction was 

not authenticated at trial. In addition, defendant argues that, even if the e-mail contained a threat, 

it was not a “true threat” and, therefore, his speech was protected by the first amendment of the 

United States Constitution. U.S. Const., amend. I. For the following reasons, we affirm. 

¶ 2 I. BACKGROUND

¶ 3 On August 8, 2011, defendant was indicted for knowingly transmitting a threat of 

violence directed against Susan Shrader, a dean at Geneva High School, in that he transmitted an 

e-mail message containing a death threat in violation of section 26-1(a)(13) of the Criminal Code 

of 1961 (720 ILCS 5/26-1(a)(13) (West 2010)). Defendant’s motion to reduce bond was granted 

with numerous conditions, including that he routinely visit a psychiatrist and take his prescribed 

medication. Further, defendant moved to quash his arrest and suppress evidence on the basis that 

there was no probable cause for the arrest. The trial court, specifically Judge James C. Hallock, 

denied the motion. 2

 

¶ 4 Judge Hallock also presided over defendant’s bench trial, which commenced on May 24, 

2012. Defendant was age 19 at the time of trial (age 18 at the time of the alleged offense). The 

State’s first witness was Jodee Blanco, who testified that she is an anti-bullying activist and 

author who travels to schools around the world, sharing her personal story of bullying survival 

with the goal of motivating change. Blanco is not a trained counselor or psychologist. 

 2 We note for context only that, at the hearing on his motion to quash and suppress, 

defendant testified that, on April 26, 2011, at 1:30 a.m., he wrote an e-mail to Jodee Blanco from 

his mother’s computer. He identified the e-mail, and it was introduced into evidence. Portions 

of the e-mail read into evidence are identical to the e-mail presented at trial. The parties did not, 

however, stipulate that evidence presented at the suppression hearing was admissible at trial.
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¶ 5 Prior to April 26, 2011, Blanco presented her anti-bullying program at Geneva High 

School. After the program, defendant and other students approached her. Blanco has an 

“activist e-mail” address, “jodee@jodeeblanco.com,” that she provides to students and readers. 

The e-mail address links to her website, which is monitored by Blanco’s staff. The staff is 

trained to handle the communications, but, when there are e-mails of particular urgency, the staff 

contacts Blanco. On April 26, 2011, Blanco was in New Orleans to give a convention address. 

Her staff called about “a disconcerting e-mail” and read it to her over the phone. Blanco told the 

staff to “immediately” forward the e-mail to her, and, once she received it, she read it on her 

iPhone. The State showed Blanco exhibit No. 1, which she identified as “the e-mail that was 

sent to me at my activist address from [defendant] that concerned my staff.” The trial court 

sustained defendant’s objection for lack of foundation. The State then asked Blanco if the 

exhibit reflected the e-mail she received in April 2011, and she replied, “Oh, yes, that’s the one,” 

and confirmed that it was “exactly the same.” The State moved to admit the e-mail, but the 

court sustained defendant’s hearsay objection. Ultimately, the State again showed Blanco the 

exhibit and asked her what e-mail address the e-mail was sent to; she confirmed that it was sent 

to her activist e-mail address, which she provides to “anyone who needs to reach out to [her].” 

Blanco confirmed that the e-mail was in the same form as when she received it on April 26, 

2011. Defendant objected on the bases of lack of foundation, the best-evidence rule, and 

hearsay. The court ruled, “at this time, it is admitted. It’s admissible. I think what you are 

saying goes more to the weight, so it’s admitted over objection.”

¶ 6 Exhibit No. 1 reflects that it is “From: dan daman.” The “sent” line reflects “Sent: 

Tuesday, April 26, 2011 1:37 a.m.” The subject line reflects “Subject: Hey Jodee, this is Dan 
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Diomedes from Geneva.” The email is sent to “jodee@jodeeblanco.com” and copies 

“thetetrisking@yahoo.com.” The e-mail states:

“Hi Jodee,

It’s been awhile, I can’t believe it’s been this long, but I can’t take it anymore, I wanna 

die. There was something I never told you in the last e[-]mail I sent you. I was expelled 

from Geneva High School for posting a threat on my Facebook. Some girl that use [sic] 

to be my friend called the cops on me. I wasn’t gonna do anything, I just wanted 

someone to care. The cops took my computer, and I’ve been in the alternative school 

since April of last year. I’ve made friends with the other kids who are bullied there, 

nobody messes with me because I’m not afraid of anything. A lot of progress between 

kids has increased, and my teachers say they view me as a leader. But, I can’t do it, my 

family is useless low life shit, my teachers don’t help me, they just tell me how to live 

with it. I’m talking about being in this alternative school. I was raised by low life 

people, then I AM THE ONE WHO HAS TO END UP IN A SPECIAL SCHOOL? NOT 

ONLY THAT, THE DEAN AT GENEVA NEVER DID ANYTHING WHEN I TOLD 

HER HOW KIDS TRIED TO HIT ME WITH THEIR CARS, THEY THREW SHIT AT 

ME, AND SHOT ME WITH AIRSOFT GUNS, WHICH LEFT MARKS ON MY FACE. 

I’m so well[-]behaved at this alternative school, that they tried to get me out, which 

RARELY happens, so it was a big deal, Geneva said they didn’t want me back. I can’t 

take this alternative school environment, I can’t stand having to empty my pockets every 

morning, I can’t stand being escorted every time I have to go to the bathroom or 

something like that. They have time[-]out rooms, mostly everyone at the school has been 

[in] them. I’ve been there a year, and never once have I had to go in one. I want out or I 
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will die, the place is suffocating me. I NEED a regular school environment. I was in the 

counselor’s office the other day because I was writing suicide notes, a will, and who I 

was going to kill. I planned not to hurt any kids, I just want the dean at Geneva, my 

grandparents, and my mother dead. I’m the one who has suffered my whole life, now I 

want them to suffer.” (Emphases in original.)

¶ 7 Blanco testified that, when she read the e-mail, she felt “[c]oncern for the safety of 

[defendant’s] grandparents, his mother and the dean; compassionate, compassionate concern for 

[defendant] because the demeanor of the e-mail led [her] to believe that he was troubled and 

needed support.” After reading the e-mail, Blanco instructed her staff to telephone the principal 

at Geneva High School and to link Blanco into the conversation. She spoke to the principal “in 

the hopes that he would have the address of [defendant’s] family so they could be alerted to get 

out of the house.” Next, Blanco was linked into a phone call with the police, and she asked them 

to dispatch units to defendant’s residence and to Mades-Johnstone Center in St. Charles, the 

alternative high school where defendant was a student. Finally, Blanco contacted MadesJohnstone.

¶ 8 Blanco testified that, although she is not a trained psychologist, she follows guidelines to 

protect herself from potential liability. Accordingly, when the principal of Mades-Johnstone had

defendant and the police in his office, Blanco told the police that she was concerned about 

defendant and she asked that he be taken to a hospital where he could be observed and kept from 

hurting himself or others. She also spoke with the principal and with defendant, who was “sad, 

frightened, resolved.” According to Blanco, in that conversation, defendant threatened his 

mother and grandparents. She asked defendant if he understood that many lives, including his 
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own, would change if he killed his mother and grandparents and if he “underst[ood] the finality 

of what that would mean.” Defendant responded, “yes.” 

¶ 9 The State next called Ginger Rohde, one of defendant’s teachers at Mades-Johnstone. 

Rohde testified that, on or about April 26, 2011, defendant was working at a computer station. 

Rohde approached defendant to tell him that “somebody had come for him,” and she saw at his 

station a folder that he used in the classroom. She took the folder and gave it to the police on 

April 26, 2011. The folder was introduced as exhibit No. 2. Rohde identified it and briefly 

described it as containing “some writings that were made that talked about a will, things that 

would be given away. It talked about kids suffering. It talked about [defendant] not belonging at 

our school, feeling that he didn’t belong as one of our students. Talking about getting out.” 

Over defendant’s relevance objection, the exhibit was admitted into evidence.3

 

 3 It is unclear whether this folder contains the will and list that, according to the e-mail, 

caused defendant to be sent to the counselor’s office. In any event, this court has reviewed the 

folder. On its front cover, it states, “I need to get out of Mades,” “I shouldn’t fucking be there in 

the fucking first place,” and, repeatedly, “Get me out,” “Let me out,” and “I can’t take it.” In 

addition, it states on the front, “They tried to get me out of New Directions, Geneva said Fuck 

you, they think it’s for the best that I stay at Mades. No. They were wrong. Keeping me there is 

destroying my mental state of being. I can’t stay there, wish me luck that the proper precautions 

are taken to get me out.” The words “kill,” “suicide,” “death,” “murder,” and “blood and guts” 

are written on the front cover. In addition, the front cover contains several drawings, including 

one that reflects a person with a gun shooting someone in a window or doorway, and another that 

shows a building labeled “Mades” with what appears to be a bomb near it. Inside, the folder 

contains “My Will,” which lists to whom various items should be given. Further, there is a 
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¶ 10 Finally, Detective Brad Jerdee testified that he is the high school liaison officer 

responsible for monitoring criminal activities in the area high schools. On April 26, 2011, Jerdee 

learned of an e-mail that had been forwarded to Geneva High School by Blanco. When asked if 

he knew who sent the e-mail to Blanco, Jerdee replied that it was defendant. Defendant 

objected, arguing that there was no proof who wrote the e-mail; the court overruled defendant’s 

objection. Jerdee continued that there were, at that time, three deans at Geneva High School: 

Mike Kelly, Reed Allison, and Susan Shrader. Jerdee identified exhibit No. 1 as the e-mail that 

defendant wrote to Blanco and that was forwarded to Jerdee’s attention. (Defendant’s objections 

were again overruled.) After reviewing the e-mail, Jerdee advised Shrader of the “threat in the email” and notified Mades-Johnstone of the “severe threat” received. Jerdee observed Shrader’s 

demeanor after she read the e-mail. She was visibly upset, nervous, “shaky,” uneasy, and 

fearful. Jerdee testified that defendant was formerly a student at Geneva High School, but had 

been “outplaced” (i.e., expelled) to Mades-Johnstone. 

¶ 11 Defendant was taken to Delnor hospital. Jerdee and another officer went to the hospital, 

where defendant was in the emergency room speaking with a social worker. The social worker 

asked the officers if they wished to speak with defendant, Jerdee replied that they did, and she 

left the room. Defendant told the officers:

“that he did in fact send an e-mail to Jodee Blanco indicating that he was fed up with his 

current school, situation, and that—

 

drawing of a person holding a gun to his head. Finally, there are two paragraphs of writing, 

discussing burning down Mades, but saving the kids and committing suicide, as well as 

comments critical of defendant’s mother and grandparents.
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* * *

And that he couldn’t take any more of that situation, which prompted him to write 

the e-mail. He said that he was frustrated and wanted his parents, his grandparents, and 

Dean Shrader to suffer. He specifically stated in the e-mail that he wanted them to die.”

In their meeting, Jerdee showed defendant the e-mail he had received, and defendant “alluded”

that he was angry with Shrader because she placed him in the alternative school. 

¶ 12 Defendant was next taken to St. Joseph’s hospital in Elgin. Jerdee received a warrant for 

defendant’s arrest, and on May 3, 2011, defendant was transported from the hospital to the police 

station. After he received Miranda warnings, defendant spoke with Jerdee and another officer 

about how he was feeling and the medications he was taking. They discussed the e-mail, and “he 

again told us that he knew that—he felt that it was inappropriate in sending it; however, he was 

frustrated at the time and that’s why he sent that e-mail.” Defendant voluntarily provided a 

written statement, which included, “I wrote this e[-]mail because I was seeking help for 

depression, anger, and suicidal thoughts, and I had nobody around to talk about it with. I sent an 

e[-]mail to Jodee Blanco with words like ‘I want to die,’ ‘I want my family dead’ . . . things like 

that, but I thought Jodee would understand. Problem was, somebody else read the e[-]mail first, 

and had to take precautions.” Further, defendant wrote, “[b]efore writing this letter, I found out 

that the dean at Geneva was shocked that I wanted her dead, but I also found out that she 

couldn’t tell me about any other kids[’] consequences, even though she did everything that she 

could to help me. If she was here, I would look her in the eyes, and apologize for worrying her.” 

The statement was received into evidence (exhibit No. 3).

¶ 13 The State rested. Defendant moved for a directed finding, arguing that the e-mail was not 

proven to have come from him; that the e-mail and folder reflected only his will, wishes, and 
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private thoughts, not a threat; and that, even though his thoughts were disturbing, the State did 

not establish any intent to transmit a threat. The court denied defendant’s motion for a directed 

finding. Defendant presented no evidence. The court found defendant guilty of disorderly 

conduct. It denied defendant’s motion to reconsider. The court sentenced defendant to time 

served (101 days in jail), assessed various fines and fees, and imposed 30 months of probation, 

“the first 12 to be intensive.” Further, it ordered defendant to continue his psychiatric treatment 

and to remain on GPS monitoring for the first 12 months of probation. Defendant appeals.

¶ 14 II. ANALYSIS

¶ 15 A. Sufficiency of the Evidence

¶ 16 Defendant argues first that the evidence was insufficient to sustain his conviction 

because: (1) considering the e-mail’s content and to whom it was sent, it did not contain a 

knowingly made death threat; and (2) the e-mail was inadmissible as substantive evidence 

because the State failed to authenticate it as having been authored by defendant. 

¶ 17 We first address defendant’s second argument. Defendant argues that, although the court 

initially sustained his foundation objection, its subsequent admission of the exhibit was 

erroneous because the State did not present evidence to show that he authored and sent the email. Defendant notes that, although the e-mail’s subject line states “Hey, Jodee, this is Dan 

Diomedes from Geneva,” that statement is hearsay and could have been written by anyone. 

Further, defendant notes that the e-mail purported to be from “dan daman,” which is not his 

name, and that the State did not provide any evidence that the e-mail was generated from his email address. Accordingly, defendant argues, because the State did not directly link to him the 

Internet Protocol (IP) address from which the e-mail was sent, and because the circumstantial 
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evidence was inadequate to authenticate the e-mail, it was inadmissible and his conviction must 

be reversed. We disagree.

¶ 18 We review a trial court’s admission of evidence for an abuse of discretion. People v. 

Caffey, 205 Ill. 2d 52, 89 (2001). An abuse of discretion occurs only when no reasonable person 

would adopt the court’s view. Id. Here, defendant is correct that the evidence did not directly 

establish that he sent the e-mail. However, as defendant acknowledges, a document can be 

authenticated through circumstantial evidence. See, e.g., People v. Towns, 157 Ill. 2d 90, 104 

(1993) (a written document can be authenticated through circumstantial evidence, such as by 

“appearance, contents, and substance”). Here, viewing the evidence in its totality, we cannot 

conclude that the trial court abused its discretion in admitting the e-mail. 

¶ 19 The e-mail reflects, in the subject line, “this is Dan Diomedes from Geneva.” While this 

is clearly insufficient, alone, to establish that defendant was in fact the author, the trial court 

could certainly consider that subject line when viewing the evidence as a whole. Further, the 

body of the e-mail discussed that the author: (1) was expelled from Geneva High School for 

posting a threat on Facebook and was sent to an alternative school; (2) was upset at the Geneva 

High School’s dean and described “her” as not addressing bullying; (3) wanted to return to 

Geneva High School, but the school refused to allow it; (4) was “suffocating” and unhappy in the 

alternative school environment; (5) had recently written suicide notes, a will, and a list of people 

whom he or she “was going to kill”; and (6) was not going to hurt any kids, but “wants” dead 

and “to suffer” the dean at Geneva, his or her grandparents, and his or her mother. Much of that 

information was also written on the folder that was confiscated from defendant and admitted into 

evidence at trial. (Indeed, in his appellate brief, defendant agrees that the “writings on the inside 

and outside of the folder mirror the remarks that [defendant] conveyed to Blanco in the email.”)
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Accordingly, the trial court could reasonably have found that the person who wrote the e-mail 

was the same person who wrote the notes on the folder. Finally, in his voluntary written 

statement, defendant stated that he wrote “this e-mail” (emphasis added) to Blanco, which 

included phrases such as “I want to die” and “I want my family dead,” and he further stated that 

he learned that Shrader was shocked that he wanted her dead. Jerdee testified that defendant 

wrote the voluntary statement while being interviewed about the e-mail that Blanco received and 

forwarded to the police. Moreover, Jerdee testified that, in his interview with defendant at the 

hospital, defendant admitted to having written the e-mail. 

¶ 20 Contrary to defendant’s assertion, the cases he cites do not stand for the proposition that, 

to connect the e-mail to him, the State was “obliged” to demonstrate that the IP address from 

which the e-mail was sent was connected to him. While, in those cases (both of which 

concerned computer-related crimes, such as computer tampering and electronic harassment), the 

State did offer IP addresses connected to the defendants, the courts did not hold or even suggest 

that an e-mail must be authenticated through an IP address or that circumstantial evidence is 

insufficient. See, e.g., People v. Kucharski, 2013 IL App (2d) 120270, ¶¶ 10-12; People v. 

Janisch, 2012 IL App (5th) 100150, ¶¶ 8-9. Indeed, Illinois Rule of Evidence 901(b)(4) (eff. 

Jan. 1, 2011) illustrates that, where a document’s contents, in conjunction with other 

circumstances, reflect distinctive characteristics, the authentication requirement may be deemed 

satisfied. In sum, the circumstantial evidence here was sufficient to establish that defendant 

wrote the e-mail, and the trial court did not abuse its discretion in admitting the e-mail into 

evidence.

¶ 21 Next, defendant argues that the evidence was insufficient to establish a knowing threat. 

The statute provides:
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“(a) A person commits disorderly conduct when he or she knowingly:

* * *

(13) Transmits or causes to be transmitted a threat of destruction of a 

school building or school property, or a threat of violence, death, or bodily harm directed

against persons at a school, school function, or school event, whether or not school is in 

session[.]” 720 ILCS 5/26-1(a)(13) (West 2010). 

Defendant argues that the State therefore needed to prove both that he knowingly sent the e-mail 

and that, when he sent the e-mail, he possessed a conscious awareness that he was transmitting a 

threat. Defendant argues that the State failed to do so here, where the evidence reflects that he 

sent the e-mail to a third party to express frustration with his situation and where, in his written 

statement, he explained that he sent the e-mail seeking help for depression and because he 

thought that Blanco would understand his feelings. Defendant argues that no rational fact finder 

could find beyond a reasonable doubt that he knowingly transmitted a threat directed against 

Shrader.

¶ 22 The State disagrees that it needed to establish anything more than that defendant 

knowingly sent a message that he knew or should have known was a threat. The State relies on 

People v. Raby, 40 Ill. 2d 392, 397 (1968), where the court held that a defendant is guilty of 

disorderly conduct if he or she knowingly committed an act in an unreasonable manner and “he 

[or she] knew or should have known [that it] would tend to disturb, alarm or provoke others.” 

However, the court in Raby considered a section of the disorderly-conduct statute, different from 

the one at issue here, that contemplates the state of mind of both the actor and those affected by 

the actor’s conduct. Id. at 395; see 720 ILCS 5/26-1(a)(1) (West 2012) (formerly Ill. Rev. Stat.

1967, ch. 38, ¶ 26-1(a)(1)) (“[a] person commits disorderly conduct when he knowingly ***
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does any act in such unreasonable manner as to alarm or disturb another and to provoke a breach 

of the peace”). Accordingly, the Raby court explained that “knowingly,” which describes a 

“conscious and deliberate quality which negatives accident or mistake,” requires that the actor 

must knowingly commit the act. However, as to how that act might affect another (i.e., alarm or 

disturb), the lesser standard of “knew or should have known” applies. Raby, 40 Ill. 2d at 395, 

397. 

¶ 23 Here, in contrast to Raby, the disorderly-conduct provision at issue does not contemplate 

a state of mind for those who might be affected by the actor’s conduct. Rather, as relevant here, 

the provision requires only that the actor knowingly transmit a threat of violence, death, or 

bodily harm directed against persons at a school. 720 ILCS 5/26-1(a)(13) (West 2010). 

Accordingly, we interpret the knowledge requirement to apply to all elements of subsection 

(a)(13), such that the actor not only must knowingly transmit something, but must also know that 

what is being transmitted is a prohibited threat. Indeed, other statutes, wherein “knowingly” 

appears only at the statute’s beginning, have been interpreted to apply the “knowingly” mens rea

to all subsequent elements of the crime. See, e.g., People v. Frieberg, 147 Ill. 2d 326, 347 

(1992) (interpreting Controlled Substances Act);4 People v. Hernandez, 2012 IL App (1st) 

 4 Specifically, where the statute provided that “any person who knowingly brings or 

causes to be brought into this State for the purpose of manufacture or delivery or with the intent 

to manufacture or deliver a controlled *** or counterfeit substance *** is guilty of controlled 

substance trafficking” (Ill. Rev. Stat. 1991, ch. 561⁄2, ¶ 1401.1 (now 720 ILCS 570/401.1(a) 

(West 2012)), knowledge was required both for bringing the substance and for the end or aim of 

that activity. Frieberg, 147 Ill. 2d at 347. 
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092841, ¶ 31 (interpreting Identity Theft Law);5 see also 720 ILCS 5/4-3 (West 2012) (“If the 

statute defining an offense prescribed a particular mental state with respect to the offense as a 

whole, without distinguishing among the elements thereof, the prescribed mental state applies to 

each such element.”). Accordingly, here, because “knowingly” is placed at the beginning of the 

statute without further distinction within the provision, we agree with defendant that, for 

purposes of section 26-1(a)(13), the State was required to prove beyond a reasonable doubt that 

defendant knowingly, i.e., consciously and deliberately, transmitted a threat directed against 

Shrader, not merely that defendant should have known he was transmitting a threat.

¶ 24 Nevertheless, when a defendant challenges the sufficiency of the evidence supporting his 

or her conviction, the inquiry is whether, after viewing the evidence in the light most favorable to 

the State, any rational trier of fact could have found the essential elements of the crime beyond a 

reasonable doubt. People v. Collins, 214 Ill. 2d 206, 217 (2005). It is the function of the trier of 

fact to weigh and resolve conflicts in the evidence and draw reasonable inferences therefrom. 

People v. Williams, 193 Ill. 2d 306, 338 (2000). Here, we conclude that a rational trier of fact, 

viewing the evidence in the light most favorable to the State, could have found beyond a 

reasonable doubt that defendant knowingly transmitted an e-mail that he knew contained a threat 

directed against Shrader.

 5 Specifically, where the statute provided that “[a] person commits the offense of identity 

theft when he or she knowingly: (1) uses any personal identifying information or personal 

identification document of another person to fraudulently obtain credit, money, goods, services, 

or other property” (720 ILCS 5/16G-15(a)(1) (West 2008)), knowledge was required both for the 

use of the information and for the information’s belonging to another person. Hernandez, 2012 

IL App (1st) 092841, ¶ 31.
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¶ 25 Defendant argues that, because he was seeking help for his depression and intended his 

statements to Blanco to remain private, he did not knowingly transmit a threat directed against 

Shrader. Defendant concedes that the statute does not require that the threat be directly 

communicated to the subject of the threat. However, he asserts that the fact that he sent the 

message to Blanco nevertheless reflects that his goal was to elicit sympathy, not to intimidate the 

dean. Finally, he argues that a threat does not exist without evidence of a “present 

determination” to injure and that, here, the e-mail reflected only a past determination to injure. 

We disagree.

¶ 26 We acknowledge that the e-mail can be read, in part, as defendant’s attempt to express to 

Blanco his depression and frustration with his life and school environment. However, 

defendant’s e-mail did not express only emotions of frustration and anger. Defendant did not 

simply lament his life or even directly request any help. Rather, after expressing frustration and 

anger, the e-mail abruptly ended with a statement that defendant “wants” (present tense) the dean 

“dead” and for her “to suffer.” Defendant argues that wanting a person dead is not illegal, but 

the sentence immediately preceding defendant’s wish explained that defendant had been writing 

a list of people whom he was going to kill, with the final sentence clarifying that he was not 

going to hurt kids, but, rather, he “wants” (again, present tense) the dean and members of his 

own family “dead” and “to suffer.” Viewing the evidence in the State’s favor, a reasonable fact

finder could conclude that, when read in its entirety, the message seeking sympathy from Blanco 

also included a present threat of injury or death to those specified, including Shrader. 

¶ 27 Further, the e-mail itself provided sufficient evidence from which the trier of fact could 

have rationally concluded that, given his background, defendant knew that he was transmitting a 

threat. The e-mail summarized two previous instances wherein defendant’s threats or suicidal 
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and/or violent writings resulted in meaningful consequences. First, defendant wrote in the e-mail 

that, when he posted a threat on Facebook, he was expelled from Geneva High School. Second, 

defendant wrote in the e-mail that, when he created a will and a list of people whom he planned 

to kill, he was sent to the counselor’s office. As such, a rational trier of fact could conclude that 

defendant knew that, when he sent the e-mail in the middle of the night (at 1:37 a.m.) to Blanco 

(who, we note, was not an advisor, counselor, or psychologist, or anyone with whom defendant

could legitimately expect a confidential relationship), lamenting his life, describing a list of 

people whom he was going to kill, and stating that he presently wants the dean “dead” and “to 

suffer,” he was transmitting a threat against Shrader. In sum, given defendant’s history (as 

provided within his own e-mail), we conclude that a reasonable fact finder could have found 

beyond a reasonable doubt that defendant knowingly transmitted a threat of violence, death, or 

bodily harm directed against Shrader. 

¶ 28 B. First Amendment Issue

¶ 29 Next, defendant argues that his disorderly-conduct conviction must be reversed because 

his e-mail to Blanco was not a “true threat” and, therefore, it constituted speech protected by the 

first amendment to the United States Constitution. 

¶ 30 The first amendment prevents government from proscribing speech because of 

disapproval of the expressed ideas. R.A.V. v. City of St. Paul, 505 U.S. 377, 382 (1992). As the 

disorderly-conduct provision at issue here makes criminal a certain form of speech, it must be 

interpreted within the confines of the first amendment. See, e.g., People v. Redwood, 335 Ill. 

App. 3d 189, 192 (2002). However, the first amendment permits restrictions on some forms of 

speech, including “true threats,” which:
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“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. [Citations.] 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.” (Internal quotation marks 

omitted.) Virginia v. Black, 538 U.S. 343, 359-60 (2003).

See also People v. Bailey, 167 Ill. 2d 210, 227-28 (1995) (true threats are not entitled to first 

amendment protection); People v. Sucic, 401 Ill. App. 3d 492, 502 (2010) (same). If a defendant 

establishes that his or her speech did not constitute a true threat, the appropriate remedy would 

be to reverse his or her conviction of disorderly conduct. See, e.g., Sucic, 401 Ill. App. 3d at 

502-03. We review de novo whether a statement qualifies as protected speech under the first 

amendment. Duncan v. Peterson, 408 Ill. App. 3d 911, 918 (2010). 

¶ 31 Defendant argues that we must look to the context of the e-mail to determine whether it 

contained a “true threat.” Defendant asserts that “true threats” are statements that, in light of 

surrounding circumstances, “a speaker would reasonably foresee that a listener would reasonably 

interpret as a serious expression of a purpose to inflict harm, as distinguished from hyperbole, 

jest, innocuous talk, expressions of political views, or other similarly protected speech.” In re 

Douglas D., 2001 WI 47, ¶ 34, 243 Wis. 2d 204, 626 N.W.2d 725 (citing State v. Perkins, 2001 

WI 46, ¶ 29, 241 Wis. 2d 141, 626 N.W.2d 762). Defendant asserts that many jurisdictions, 

including the Seventh Circuit Court of Appeals, focus on what a “reasonable sender” would 

foresee the recipient would understand. See, e.g., United States v. Fuller, 387 F.3d 643, 646 (7th 

Cir. 2004) (looking at how a “reasonable person would foresee that the statement would be 
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interpreted”). Accordingly, defendant argues that, because it is evident from the surrounding 

circumstances that he meant only to share his “dark thoughts,” a speaker in his position would 

not reasonably foresee that Blanco and others would interpret the e-mail as a serious threat of 

harm. Finally, defendant asserts that, because the statements in his e-mail were ambiguous, as 

opposed to reflecting a specific plan to commit harm, his expression is similar to other cases 

where courts have held that “dark” communications were protected by the first amendment. See, 

e.g., In re George T., 93 P.3d 1007, 1009, 1016-18 (Cal. 2004) (student adjudged delinquent did 

not communicate a true threat where he joked about the Columbine shootings and shared with 

several students a poem entitled “ ‘Dark Poetry,’ ” which stated, “ ‘I am Dark, Destructive, & 

Dangerous. I slap on my face of happiness but inside I am evil!! For I can be the next kid to 

bring guns to kill students at school. So parents watch your children cuz I’m BACK!!’ ”; court 

found that the poem was ambiguous and equivocal and that there were no circumstances 

reflecting any animosity between the writer and other students with whom he shared the poem

and no conduct to suggest the immediate prospect of execution of a threat to kill); J.S. v. 

Bethlehem Area School District, 807 A.2d 847, 851, 859-60 (Pa. 2002) (student expelled from 

school for creating a website entitled “ ‘Teacher Sux,’ ” which included a request for $20 to pay 

for a hitman, included a drawing of the teacher with her head cut off and blood dripping, and had 

a page entitled “ ‘Why Should She Die?’ ”; court found that there was no true threat because the 

totality of circumstances reflected that the threat was not communicated directly to the teacher, 

there was no evidence that the student had made similar statements to the teacher on other 

occasions, the website contained cartoon characters and compared the teacher to Adolph Hitler, 

and it was unclear whether the teacher had reason to believe that the student had more propensity 

to engage in violence than any other student his age); Douglas D., 2001 WI 47, ¶¶ 1-10, 243 
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Wis. 2d 204, 626 N.W.2d 725 (student was adjudged delinquent for writing a story wherein the 

protagonist cut off the teacher’s head and the teacher, upon reading it, interpreted the story as a 

threat; court found that the story was not a true threat because there was no evidence that the 

student had threatened the teacher in the past or that the teacher believed the student had 

propensity to commit violence and, further, the story contained hyperbole and attempts at jest 

and did not contain any language directly addressed to the teacher). Defendant notes that the 

recipients in the aforementioned cases were all frightened by the expressions of speech but that, 

nonetheless, the expressions did not equate to “true threats.”

¶ 32 The State agrees that context must be considered when assessing whether a statement 

constitutes a true threat, but it asserts that most courts use an objective test to determine “if an 

ordinary reasonable recipient who is familiar with the context ... would interpret [the statement] 

as a threat of injury.” (Internal quotation marks omitted.) United States v. White, 670 F.3d 498, 

507 (4th Cir. 2012). The State notes that here an objective reasonable recipient, i.e. Blanco, who 

was familiar with the context of the e-mail, interpreted the statement as a threat of injury. In 

addition, the State notes that defendant’s statement was also taken seriously by the police and the 

high school and that the e-mail itself referred to a prior threat. The State concludes that, because 

reasonable recipients interpreted the e-mail as a serious threat, defendant’s e-mail was not 

protected. It further notes that the cases cited by defendant are distinguishable, and it asserts that 

this case is more like In re A.S., 2001 WI 48, ¶ 23, 243 Wis. 2d 173, 626 N.W.2d 712, where the 

court found that a minor had made true threats when he told other children that he was going to 

kill everyone at a middle school and make people suffer, he made specific threats against several

individuals (including that he would “ ‘hang,’ ” “ ‘rape,’ ” and “ ‘make [them] suffer’ ”), and 

there was nothing in the statements or other context to suggest that the minor was engaging in 
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jest, hyperbole, or political dissent. The State contends that defendant’s e-mail constituted a true 

threat that does not fall within first amendment protections.

¶ 33 We must first address the suggested discrepancy between defendant’s position, that our 

review should focus on what a reasonable speaker in his position would foresee, and the State’s 

position, that we should focus objectively on how a reasonable recipient would interpret the 

communication. In essence, it appears that both are partially correct. While there exists a split 

of federal authority on whether we should focus on the “reasonable sender” of the 

communication or the “reasonable recipient” of the communication (see White, 670 F.3d at 509-

10 (collecting cases)), both defendant and the State are asking us to view the issue from an 

objective, not subjective, approach. For example, in White, the case upon which the State relies, 

the court noted that its approach, which focuses on the reasonable recipient, is an objective one. 

Id. at 510. In Fuller, a case upon which defendant relies, the Seventh Circuit noted that it applies 

an objective “true threat” test that asks whether “a reasonable person would foresee that the 

statement would be interpreted by those to whom the maker communicates the statement[, i.e., 

the recipient (not necessarily the subject of the threat),] as a serious expression of an intention to 

inflict bodily harm.” (Internal quotation marks omitted.) Fuller, 387 F.3d at 646. In United 

States v. Parr, 545 F.3d 491, 499-50 (7th Cir. 2008), the Seventh Circuit discussed that there also 

exists a split of authority on whether (based on Black’s language that true threats encompass 

statements wherein the speaker means to communicate a serious threat to harm) a subjective

element was introduced into the analysis or whether the traditional, objective reasonable-person 

test should continue to be applied. In doing so, however, it described the traditional objective 

test as asking whether a reasonable speaker would understand that his or her statement would be 

interpreted as a threat (the “objective ‘reasonable speaker’ ” test) or, alternatively, whether a 
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reasonable recipient would interpret the statement as a threat (the objective “ ‘reasonable 

recipient’ ” test). Id. at 499. The Parr court stated that “[t]his circuit has not yet addressed the 

issue,” and it described its former decision in Fuller as merely “a post-Black true threats case 

applying, without reference to Black, the traditional objective ‘reasonable person’ test.” Id. at 

500.

¶ 34 Accordingly, it appears that the Seventh Circuit’s approach has been, and remains, an 

objective one, which allows evaluation of the speaker’s communication under either the 

reasonable-speaker or the reasonable-recipient test. Further, although courts in this state have 

not explicitly decided the issue, the approach also appears to be objective. For example, in 

Sucic, the defendant relied on Black to argue that a subjective approach should be applied to 

determine whether his statements amounted to true threats. Sucic, 401 Ill. App. 3d at 503. In 

addressing that claim, the court noted that, while there has been a federal split of authority 

interpreting Black, Illinois courts have found that the term “threat” implies generally that the 

expression has a “reasonable tendency to create apprehension that its originator will act 

according to its tenor.” (Internal quotation marks omitted). Id.6

 This definition suggests that an 

 6 Interestingly, the Sucic court (which was considering the issue of threats as related to a 

cyberstalking statute) ultimately determined that it did not need to resolve whether Black added a 

subjective-intent requirement to the test for true threats, because the defendant had placed his 

subjective intent at issue by arguing that his statements were merely “spiritual,” not threatening. 

Sucic, 401 Ill. App. 3d at 504. The trial court, as fact finder, rejected the defendant’s argument 

and determined that the statements were clear threats directed at the victim. Therefore, the court 

essentially determined that, regardless of the test, any subjective-intent element was satisfied. 

Id. A similar analysis could be performed here. Defendant wishes us to find that, given all 
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objective, not a subjective, approach continues to apply. See also People v. Peterson, 306 Ill.

App. 3d 1091, 1102-03 (1999) (considering threats under the intimidation statute and rejecting 

the defendants’ argument that their speech was protected, noting that “ ‘punishable threats’ ” are 

those that have a “reasonable tendency to create apprehension,” which is “essentially an 

objective determination”).

¶ 35 Therefore, it appears that neither the objective reasonable-speaker nor the objective 

reasonable-recipient approach is foreclosed from our consideration. Indeed, in our view, the 

reasonable-speaker test, by requiring consideration of how others might interpret the 

communication, essentially subsumes or encompasses the reasonable-recipient test.7 In any 

 

circumstances, he did not communicate in his e-mail a serious expression of an intent to harm a 

particular individual. However, as in Sucic, defendant argued at trial that the e-mail was meant 

only to convey anger and frustration, not to threaten. The trial court rejected that explanation, 

much as it could have rejected the explanation had defendant testified that he had no subjective 

intent to threaten, and it found the testimony not credible. Instead, the court found that the threat 

was serious. For many of the reasons discussed in our sufficiency analysis above, the evidence 

supports that finding.

7 The Eleventh Circuit Court of Appeals, in United States v. Alabou, 347 F.3d 1293, 1297 

n.3 (11th Cir. 2003), concluded similarly, noting:

“While neither the government [n]or [the defendant] contest that we use an 

objective standard in determining whether a communication is a threat, the government in 

its brief makes an issue of the distinction between ‘listener-based’ and ‘speaker-based’ 

tests. A ‘speaker-based’ test is whether the person uttering the statements should be held 

to reasonably foresee their effect on the recipient. See, e.g., United States v. Fulmer, 108 
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event, even applying, per defendant’s request, the reasonable-speaker approach, we conclude that 

the evidence here is such that a speaker would reasonably foresee that a listener would 

reasonably interpret the communication as a serious expression of intent to harm.

¶ 36 We acknowledge first that, when compared with some of the foregoing cases, there are 

some factors here that could weigh against finding a serious threat. For example, as defendant 

points out, his e-mail was not as graphic as some of the expressions in the above cases found to 

constitute protected speech, he did not transmit the e-mail directly to the target of the alleged

threat, and the record contains no evidence of any specific prior threats he made against Shrader. 

Nevertheless, more circumstances weigh in favor of finding a serious expression of intent to 

harm. First, regardless of the lack of details, the e-mail reflected that defendant made a previous 

 

F.3d 1486, 1491-92 (1st Cir. 1997). On the other hand, a ‘listener-based’ test is whether 

a person hearing the remarks would reasonably interpret them as an expression of an 

intent to harm. See, e.g., United States v. Malik, 16 F.3d 45, 49 (2d Cir. 1994).

This Court has not specified if we use a ‘listener-based’ or ‘speaker-based’ test 

because there is no need to make this determination. Both tests are basically a ‘listenerbased’ test. If we were to employ the ‘speaker-based’ test, the jury would have to decide 

how a reasonable listener would understand the communication in order to determine 

how a reasonable speaker would foresee the effect of his or her communication. See 

Jennifer Rothman, Freedom of Speech and True Threats, 25 Harv. J.L. & Pub. Pol’y 283, 

303 (Fall 2001). That is why, in [United States v. Callahan, 702 F.2d 964 (11th Cir. 

1983)], we never specified if we have a ‘listener-based’ or ‘speaker-based’ test, but rather 

simply asked how a ‘reasonable person would construe’ the communication. Callahan, 

702 F.2d at 965 ***.” (Emphasis omitted.)”
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threat on Facebook that resulted in his expulsion from his high school. It does not really matter 

that we know nothing about the contents of that former threat: if it was graphic or related to 

Shrader, it weighs in favor of a finding that the e-mail may be viewed as a second and/or serious 

threat directed against her. If, instead, it was not particularly graphic or not related to Shrader, it 

supports a finding that, given that it nevertheless resulted in expulsion, a serious consequence, 

defendant was on notice that the contents of his e-mail would cause a reasonable recipient to fear 

violence. Second, unlike a Facebook post or a website, available to many, defendant sent his email only to a single and specific recipient, Blanco, and the tenor of the e-mail was very serious 

and did not contain any jest, hyperbole, or political dissent. Together, these factors support a 

finding that the threat was serious. Third, the e-mail complained that defendant desperately 

“needs” to leave his alternative school environment, that Geneva High School will not take him 

back, and that he wants the dean of that high school dead. The e-mail reflects that defendant had 

written a list of people whom he was going to kill, and he specifically identified at least some of 

those individuals. Accordingly, the totality of the circumstances suggests a “true threat.” 

¶ 37 We feel compelled to note that we are sympathetic to the fact that defendant was clearly 

experiencing emotional difficulties when he wrote this e-mail. We have no doubt that the e-mail 

did, in part, constitute, as defendant puts it, “an expression of teenage despair.” We understand 

that, in her position as an anti-bullying activist, Blanco encourages students and others to reach 

out to her through her “activist e-mail” address and that, in that sense, defendant felt encouraged 

to communicate his emotions with her. Nevertheless, defendant did more than simply express 

his emotions. Again, Blanco is not a trained therapist or a professional with whom defendant 

shared a confidential, privileged relationship (and, of course, even such professionals may report 

serious threats against others (see 740 ILCS 110/11 (West 2012)). The e-mail’s tenor, 
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defendant’s history of making at least one prior threat and purportedly, in close temporal 

proximity to the e-mail, a list of people whom he was going to kill, and the e-mail’s expression 

of defendant’s present wish for specific individuals to die and suffer are circumstances sufficient 

for us to find that a reasonable sender would foresee that a reasonable recipient would view it as 

a serious threat to harm another (and, here, Shrader specifically). Accordingly, we reject 

defendant’s argument that the e-mail was not a true threat.

¶ 38 III. CONCLUSION

¶ 39 For the foregoing reasons, the judgment of the circuit court of Kane County is affirmed.

¶ 40 Affirmed.