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SECOND DIVISION
March 30, 2004

No. 1-03-0384

JUSTICE BURKE delivered the opinion of the court:

Following a bench trial, defendant John Barron was foundguilty of two counts of felony disorderly conduct (720 ILCS 5/26-1(a)(3) (West 2002)) for declaring to ticketing agents at MidwayAirport that he had a bomb in his shoe. Defendant was sentenced toone year of conditional discharge and 185 days' imprisonment (timeconsidered served). On appeal, defendant contends that the Statefailed to prove him guilty beyond a reasonable doubt because theevidence showed that his remarks were understood as a joke. Defendant argues that section 26-1(a)(3) of the Criminal Code of1961 (Code) (720 ILCS 5/26-1(a)(3) (West 2002)) does not apply toremarks that are understood as jests. In the alternative,defendant contends that if section 26-1(a)(3) of the Codecriminalizes a joking remark that is understood as such, thestatute is unconstitutionally overbroad. For the reasons set forthbelow, we affirm.

At 1 p.m. on March 28, 2002, defendant approached the ticketcounter of Frontier Airlines at Midway Airport in Chicago, Illinoisto check in for a flight he was scheduled to take at 7 p.m. on thatdate. Because defendant was too early to check in for hisscheduled flight, the ticket agent offered defendant the option oftaking an earlier flight so that he could check his bag and enterthrough security. Defendant accepted the offer, and the ticketagent began to process defendant for his new flight.

During the check in process, defendant began to ask the ticketagent, "[A]re you going to check me?" The ticket agent informeddefendant that he was not a random selectee, meaning that thecomputer had not chosen defendant and his baggage to be personallysearched at that point, so he would not be searching defendant orhis bag. Defendant then leaned in toward the ticket counter andbegan waiving his arms in the air while he stuck his right legforward and said, "I only have one bomb in my shoe." The ticketagent responded that defendant could not "joke" about possessing abomb and that he needed to "simmer down right now and not be sayingthose things." The ticket agent also detected the odor of alcoholcoming from defendant at this time. Defendant quieted down for ashort time before once again getting excited and repeatedly askingthe ticket agent if he was going to check him.

Another ticket agent, who was working alongside the agentdealing with defendant, overheard defendant's statement that he hada bomb in his shoe. This agent also informed defendant not to makecomments like that because they were taken seriously. Defendantresponded by laughing at the agent. After defendant began to onceagain state that his bag should be checked because the agents didnot know "what was in his bag," he was informed that if he made onemore comment, he would be denied boarding. Defendant once againlaughed at the agent, who then notified the police.

Defendant's person and baggage were subsequently searched bypolice officers and a bomb-sniffing dog. No bomb was found. Thereafter, defendant was taken to a police room where he admittedseveral times to the officers that he told the ticket agent he hada bomb in his shoe.

The State subsequently charged defendant with two counts offelony disorderly conduct. The statute under which defendant wascharged, section 26-1 of the Code, provides, in pertinent part:

"(a) A person commits disorderly conduct when heknowingly:

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(3) Transmits or causes to be transmitted inany manner to another a false alarm to the effectthat a bomb or other explosive of any nature *** isconcealed in such place that its explosion orrelease would endanger human life, knowing at thetime of such transmission that there is noreasonable ground for believing that such bomb ***is concealed in such place ***." 720 ILCS 5/26-1(a)(3) (West 2002).

Following a bench trial, defendant was found guilty of bothcounts of felony disorderly conduct. Defendant's subsequent motionfor a new trial was denied and he was sentenced to one year ofconditional discharge and 185 days' imprisonment (time consideredserved).

On appeal, defendant first contends that the State failed toprove him guilty beyond a reasonable doubt. Defendant argues thatsection 26-1(a)(3) of the Code distinguishes between comments whichactually "alarm" an individual and those which are understood asjoking remarks. According to defendant, section 26-1(a)(3) onlycriminalizes remarks which have the effect of frightening areasonable person in the listener's position. Defendant claimsthat because the ticket agents perceived his comments as jokingremarks, the State failed to prove all the material elements of theoffense of felony disorderly conduct.

When a defendant challenges the sufficiency of the evidence,a reviewing court must view the evidence in the light mostfavorable to the prosecution and determine whether any rationaltrier of fact could have found the essential elements of the crimebeyond a reasonable doubt. People v. Pollock, 202 Ill. 2d 189,217, 780 N.E.2d 669 (2002); see also People v. Cox, 195 Ill. 2d378, 387, 748 N.E.2d 166 (2001). In the instant case, defendant'sfirst contention also involves construing section 26-1(a)(3) of theCode, which is an issue of law that we review de novo. People v.Harrell, 342 Ill. App. 3d 904, 908, 795 N.E.2d 1022 (2003).

Defendant here attempts to place into section 26-1(a)(3) arequirement beyond that of the transmission of a false alarm.Specifically, defendant argues that section 26-1(a)(3) alsorequires that, once transmitted, the alarm must cause actual fearin the mind of the listener. As there have been no Illinois casesdiscussing this point, defendant cites to several cases from otherjurisdictions in support of his contention, including Watts v.United States, 394 U.S. 705, 22 L. Ed. 2d 664, 89 S. Ct. 1399(1969), United States v. Cothran, 286 F.3d 173 (3^rd Cir. 2002),United States v. Malik, 16 F.3d 45 (2^nd Cir. 1994), and State exrel. RT, 781 So. 2d 1239 (La. 2001). According to defendant, thesecases stand for the proposition that, at least in certaincircumstances, joking remarks cannot constitute criminal behavior. However, contrary to defendant's argument, these cases all share asimilar fact which easily distinguishes them from the instantmatter.

Defendant cites Watts, Cothran, Malik, and RT for theproposition that courts will utilize an objective test to determinewhether a writing or comment constitutes a threat. While we agreewith this contention, we also find it inapplicable to the matter athand. In Watts, Cothran, Malik, and RT, the defendants werecharged with violating various state or federal statutes thatcriminalized remarks which threatened or caused fear in a listener. In Watts, the defendant was charged with violating a statute whichprohibits any threat to take the life of or to inflict bodily harmupon the President. Watts, 394 U.S. at 705; see 18 U.S.C.