Tuesday, January 26, 2010
Court of Appeal Reverses Conviction for Threat Posted on Internet
By STEVEN M. ELLIS, Staff Writer
The Fourth District Court Appeal yesterday reversed the conviction of a former Mt. San Jacinto Community College student whose comment about killing children on an ABC News website prompted the school to lock down its preschool facilities.
Div. Two said in an unpublished opinion that the former student could not be convicted for misdemeanor annoyance by means of an electronic communications device under Penal Code Sec. 653m(a) because state law requires the communication be directed to a particular person.
I Am the Beast Sssotlohiefmjn—who legally changed his name from Edmond Frank MacGillivray Jr. in 1988—posted the comment in October 2007 in response to a news story concerning a lawsuit by Duke University lacrosse players falsely accused of rape. His new surname stands for “Six six six of the Lord of Hosts in Edmond Frank MacGillivray Jr. now.”
According to authorities, Sssotlohiefmjn wrote:
“Good. I know my school, Mt. San Jacinto College in CA has violated my rights with police and others to the point I am considering a killing spree to make my case known, I figure if I off a bunch of preschoolers I may be heard and others might be spared this torment these people cause.”
The college had preschool facilities at its Hemet and Menifee campuses, and school officials—upon connecting the comment to Sssotlohiefmjn—locked down and established protective perimeters around the facilities.
Sssotlohiefmjn, who testified that he suffered from bipolar schizoaffective disease, had previously been expelled from the school over an e-mail sent to his school counselor six months earlier. The e-mail stated that Sssotlohiefmjn was “the actual leader of Al Qaeda” and requested permission to “set up a recruitment station on campus to recruit assassins for the job of killing Bush and fighting the evil american government.”
Sssotlohiefmjn claimed the e-mail was sent accidentally when his computer was hacked.
When contacted about the Internet post after a woman in Florida reported it to authorities, Sssotlohiefmjn allegedly told campus police that he thought all the time about killing children for the shock value because they were part of the evil society that persecuted him, and reportedly noted that it was not against the law just to think about killing someone.
Police arrested Sssotlohiefmjn and—after a search of his residence revealed marijuana plants and handwritten notes apparently threatening to bomb a police station next to the preschool facilities, or the school’s administration building—charged him with misdemeanor criminal threats, interfering with a school official’s duties by means of a threat, planting or cultivating marijuana, and misdemeanor annoyance by means of an electronic communications device.
Sssotlohiefmjn was convicted on the last two counts at trial before Riverside Superior Court Judge Michele D. Levine, and pled guilty to the first count after a mistrial. Levine suspended imposition of sentence for five years and placed Sssotlohiefmjn on felony probation for the Sec. 653m(a) charge on the condition he serve one year in county jail.
On appeal, Sssotlohiefmjn argued that there was insufficient evidence to support his Sec. 653m conviction because his conduct was merely a general Internet posting instead of a communication directed at a particular person, and the court, in an opinion by Justice Thomas E. Hollenhorst, agreed.
Sec. 653m(a) provides: “Every person who, with intent to annoy, telephones or makes contact by means of an electronic communication device with another and addresses to or about the other person any obscene language or addresses to the other person any threat to inflict injury to the person or property of the person addressed or any member of his or her family, is guilty of a misdemeanor.”
The statute adopts the federal definition of an “electronic communication” as “any transfer of signs, signals, writings, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic or photooptical system.”
The state argued that Sssotlohiefmjn contacted another person and violated the statute by posting the comment on the website for others to read, but Hollenhorst said prosecutors had failed to show intent by Sssotlohiefmjn to contact anyone specific.
“We do not mean to minimize the gravity of defendant’s conduct or the genuine distress and disturbance it undoubtedly caused…,” the justice wrote. “Nonetheless, it is a fundamental principle of due process that the offense of which a defendant is convicted corresponds to the defendant’s actual conduct….[Sec. 653m(a)] by its own terms, simply is not elastic enough to cover defendant’s specific actions.”
Justices Barton C. Gaut and Jeffrey King joined Hollenhorst in his opinion.
The case is People v. Sssotlohiefmjn, E047144.
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