Find Legal Information

JUSTICE COOK delivered the opinion of the court:

In January 2002, the trial court dismissed the chargesagainst defendant, Erik S. Redwood, for failure to state anoffense as a matter of law. The State appeals. We affirm.

On October 14, 1999, defendant was indicted for a hatecrime, a Class 4 felony, in that:

"[T]he said defendant, by reason of the perceived race of Harvey Welch, knowingly committed Disorderly Conduct against Harvey Welch, in violation of 720 Illinois Compiled Statutes, 5/26-1(a)(1), in that he yelled across the street at Harvey Welch, 'How long are you going to be a shoe-shine boy?', in such an unreasonable manner as to alarm and disturb Harvey Welch and provoke a breach of the peace, in violation of 720 Illinois Compiled Statutes, 5/12-7.1."

On January 16, 2001, defendant was charged by information withdisorderly conduct, a Class C misdemeanor, in that:

"[T]he said defendant knowingly yelled across a street at Harvey Welch, 'How long are you going to be a shoe-shine boy?', in such an unreasonable manner as to alarm and disturb Harvey Welch and provoke a breach of the peace, in violation of 720 Illinois Compiled Statutes 5/26-1(a)(1)."

Defendant is a white male. Harvey Welch is an African-American male. Defendant filed motions to dismiss, alleging thecharges failed to state a crime as a matter of law and that hisconduct was pure speech protected by the first amendment (U.S.Const., amend. I). In his motions, defendant admits that theincident occurred but denies that the incident was motivated byreason of the perceived race of the victim, as required by thehate crime statute (720 ILCS 5/12-7.1 (West 1998)). Defendantargued that Welch is an attorney, and the incident stemmed fromWelch's prior representation of defendant in a former case. InJanuary 2002, the trial court heard argument on both motions anddismissed both charges. This appeal followed.

The State raises three issues on appeal: (1) the trialcourt erred in finding that only "fighting words" can constitutedisorderly conduct when words alone are alleged; (2) the trialcourt erred in finding the words used in this case were not"fighting words" and, therefore, could not constitute the crimeof disorderly conduct; and (3) the trial court erred in findingthat words had to be spoken to more than one individual to causea breach of the peace.

The offense of disorderly conduct is broadly defined. "A person commits disorderly conduct when he knowingly *** [d]oesany act in such [an] unreasonable manner as to alarm or disturbanother and to provoke a breach of the peace." 720 ILCS 5/26-1(a)(1) (West 2000).

Freedom of speech is a fundamental right protected frominvasion by the state by the fourteenth amendment. SeeChaplinsky v. New Hampshire, 315 U.S. 568, 570-71, 86 L. Ed.1031, 1034, 62 S. Ct. 766, 768 (1942). However, "[t]here arecertain well-defined and narrowly limited classes of speech, theprevention and punishment of which have never been thought toraise any [c]onstitutional problem. These include *** theinsulting or 'fighting' words ***." Chaplinsky, 315 U.S. at 571-72, 86 L. Ed. at 1035, 62 S. Ct. at 769. "Fighting words" arepersonally abusive epithets which, when addressed to an ordinarycitizen, as a matter of common knowledge, inflict injury or areinherently likely to provoke an immediate breach of the peace. See Chaplinsky, 315 U.S. at 572, 86 L. Ed. at 1035, 62 S. Ct. at769; People v. Allen, 288 Ill. App. 3d 502, 507, 680 N.E.2d 795,799 (1997). A statute that punishes spoken words alone, assection 26-1 of the Criminal Code of 1961 (Code) (720 ILCS 5/26-1(West 2000)) may, cannot withstand constitutional attack unlessit cannot be applied to speech protected by the first and fourteenth amendments, even if the speech punished is vulgar oroffensive. Lewis v. City of New Orleans, 415 U.S. 130, 134, 39L. Ed. 2d 214, 219, 94 S. Ct. 970, 973 (1974). Thus, section 26-1 of the Code may only be applied in this case if the words usedare "fighting words." See People v. Slaton, 24 Ill. App. 3d1062, 1063-64, 322 N.E.2d 553, 554 (1974). The trial court didnot err in finding that only "fighting words" may satisfy thestatute.

A trial court may dismiss a charge in a criminal caseon the grounds that the charge does not state an offense. 725ILCS 5/114-1(a)(8) (West 2000). Dismissal of the charge on suchgrounds does not prevent the filing of a new charge. 725 ILCS5/114-1(e) (West 2000). Nevertheless, the State may appeal froman order dismissing a charge for any of the grounds enumerated insection 114-1 of the Code of Criminal Procedure of 1963 (Code ofCriminal Procedure) (725 ILCS 5/114-1 (West 2000)). 145 Ill. 2dR. 604(a)(1). The standard of review of a defendant's motion todismiss an indictment is whether the indictment strictly complieswith the pleading requirements of section 111-3 of the Code ofCriminal Procedure. People v. Oaks, 169 Ill. 2d 409, 442, 662N.E.2d 1328, 1342 (1996). Section 111-3(a)(3) of the Code ofCriminal Procedure requires that an indictment adequately informan accused of a charged offense by setting forth the nature andelements of the offense charged. 725 ILCS 5/111-3(a)(3) (West2000). The question is not whether the alleged offense couldhave been described with greater certainty, but whether thecharge is stated with sufficient particularity to enable theaccused to prepare a proper defense. People v. Becker, 315 Ill.App. 3d 980, 997, 734 N.E.2d 987, 1001 (2000). When addressing adefendant's motion to dismiss a charge for failure to state anoffense, a trial court is limited to assessing the legal sufficiency of the charge and may not evaluate the evidence that theparties might present at trial. People v. Soliday, 313 Ill. App.3d 338, 342, 729 N.E.2d 527, 530 (2000). We review the dismissalde novo. People v. Smith, 259 Ill. App. 3d 492, 495, 631 N.E.2d738, 740 (1994).

A charge that sets forth elements that do not amount toan offense may be dismissed under section 114-1(a)(8) of the Codeof Criminal Procedure. For example, a charge that simply statesthat a defendant unlawfully possessed a weapon, a hacksaw blade,is properly dismissed. Hacksaw blades are not defined as weaponsby any statute and are not considered weapons per se. A hacksawblade may be a weapon by virtue of the way it is used, but absentallegations of use, no criminal offense is stated. People v.Morissette, 225 Ill. App. 3d 1044, 1047-49, 589 N.E.2d 144,147-48 (1992); see also People v. Sparks, 221 Ill. App. 3d 546,549-50, 582 N.E.2d 314, 316-17 (1991) (charge alleging criminalsexual assault dismissed where it did not define the "position oftrust" the defendant held in relation to the victim).

A charge simply that defendant committed disorderlyconduct by saying "good morning" would appear not to state anoffense. The addition of the statutory language "in such anunreasonable manner as to alarm or disturb another and to provokea breach of the peace" would not be sufficient to create anoffense. Where the statute does not define or describe the actor acts constituting the offense, a charge couched in the language of the statute is insufficient. Rather, the facts thatconstitute the crime must be specifically set forth. People v.Nash, 173 Ill. 2d 423, 429, 672 N.E.2d 1166, 1169 (1996); Peoplev. Swanson, 308 Ill. App. 3d 708, 712, 721 N.E.2d 630, 633 (1999)(disorderly conduct).

After reviewing the case law, we conclude that thespeaker's "fighting words" must contain either an explicit orimplied threat and that vulgarities and epithets do not sufficeto trigger the State's prosecutorial powers and criminal sanctions. For example, in People v. Davis, 82 Ill. 2d 534, 413N.E.2d 413 (1980), the supreme court reversed the appellatecourt's holding that the defendant's acts did not constitutedisorderly conduct as a matter of law. There, the defendantentered the home of the complaining witness and approached herwaving sheets of white paper. "He pointed his finger at her andsaid that his brother was not going to jail or to court. Then hesaid, 'If he do, Miss Pearl, you know me.'" Davis, 82 Ill. 2d at536, 413 N.E.2d at 415. The complaining witness, Pearl Robinson,was 81 years old and, on the date in question, was ill andconfined to a wheelchair. The record showed that she had previously sworn out a complaint against the defendant's brother foran unrelated incident. Although the words on the surface wereambiguous, they clearly conveyed a threat to the victim. Seealso In re D.W., 150 Ill. App. 3d 729, 732, 502 N.E.2d 419, 421(1986) ("State may prove a breach of the peace by showing eitherthat the defendant threatened another or that the defendant'sactions had an effect on the surrounding crowd" (emphasesadded)).

By contrast, this court reversed a conviction fordisorderly conduct in People v. Bradshaw, 116 Ill. App. 3d 421,452 N.E.2d 141 (1983), where the defendant used vulgar languagetoward the manager of a bar. There, this court held that "[w]henthe conduct of a patron of a private establishment is merelyannoying customers and that patron refuses the demand of theproprietor to leave[,] *** the charge of criminal trespass toland is the proper charge to make." Bradshaw, 116 Ill. App. 3d.at 422-23, 452 N.E.2d at 142. After considering the words used,as well as to whom they were directed and the place in which theywere spoken, we held defendant's vulgarities did not amount todisorderly conduct. See also People v. Raby, 40 Ill. 2d 392,397, 240 N.E.2d 595, 598 (1968), quoting Cox v. Louisiana, 379U.S. 536, 557, 13 L. Ed. 2d 471, 482, 85 S. Ct. 453, 462 (1965)("[u]nder no circumstances would the statute 'allow persons to bepunished merely for peacefully expressing unpopular views'");City of Chicago v. Blakemore, 15 Ill. App. 3d 994, 996-97, 305N.E.2d 687, 688-89 (1973) (absent evidence of overt acts bydefendant, offensive language addressed to police officer doesnot cause a breach of peace even when bystanders are present).

We find defendant's hail to the complaining witness inthis case more like the vulgarities found in Bradshaw than thethreats found in Davis. The indictment and information allegeonly that defendant yelled this remark to the complaining witnessacross a public street and nothing more. Unlike Davis, defendant's words contained no implied threat. The indictment andinformation do not set out any secret threatening or obscenemeaning known only to Welch and defendant. Welch and many othersmay find the words offensive, but our cases have held that thisalone is not enough. Confining our analysis to the charginginstruments, as we must on review of a judgment dismissing forfailure to state a crime, we find the comment by defendant didnot rise to the level of "fighting words," because the commentdid not contain an explicit or implied threat. Because the onlyconduct alleged to have violated the statute was the use of thesewords, and because the "fighting words" requirement has not beenmet, the information charging defendant with disorderly conductfails to state an offense. Further, because the disorderlyconduct was the underlying offense for the State's indictment ofdefendant for a hate crime, both charges fail to state an offense.

We agree with the State that the trial court erred whenit held that "fighting words" had to be spoken to more than oneindividual to cause a breach of the peace. In its ruling on themotion, the trial court said "the audience has to be more thanone individual." While the statutory language makes reference toa breach of the peace, implying the public tranquility is what itseeks to protect, the supreme court has interpreted the intent ofthe disorderly conduct statute as seeking to guard against aninvasion of the right of others not to be molested or harassed,either mentally or physically, without justification. People v.Davis, 82 Ill. 2d at 538, 413 N.E.2d at 415. Further, thesupreme court has favorably cited the committee comments tosection 26-1 of the Criminal Code of 1961 (720 ILCS 5/26-1 (West1998)), which state "'[n]o attempt has been made to limit thescope of the article to public acts.'" Davis, 82 Ill. 2d at 538,413 N.E.2d at 415, quoting Ill. Ann. Stat., ch. 38, par. 26-1,committee comments, 1961, at 150 (Smith-Hurd 1977). Accordingly,this court has held "[i]t is not necessary that the act occur inpublic, only that defendant's actions disturb the public order." Allen, 288 Ill. App. 3d at 506, 680 N.E.2d at 798.

For the reasons stated, we affirm the trial court'sjudgment.

Affirmed.

KNECHT and APPLETON, JJ., concur.