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February 10, 1994


Appeal from the Circuit Court of Fayette County. No. 91-CF-77. Honorable Joseph L. Fribley, Judge Presiding.

Petition for Leave to Appeal Denied October 6, 1994.

Rarick, Chapman, Welch

The opinion of the court was delivered by: Rarick

JUSTICE RARICK delivered the opinion of the court:

Defendant, James Calvert, a Fayette County deputy sheriff, was charged by indictment with harassment of a witness and aggravated assault. (Ill. Rev. Stat. 1991, ch. 38, pars. 32-4a, 12-2(a)(10).) In a jury trial, he was convicted of harassment of a witness and acquitted of aggravated assault. Defendant was sentenced to 30 months' probation and fined $3,158. On appeal, defendant contends that (1) the evidence was insufficient to prove him guilty beyond a reasonable doubt; (2) he was denied his first amendment right to freedom of speech because the statute under which he was convicted was unconstitutionally overbroad and vague; (3) the trial court erred by allowing the introduction into evidence of a police department communications monitor tape which picked up the conversation upon which the harassment charge was based; and (4) the trial court committed reversible error by interrupting defense counsel in the absence of objections by the special prosecutor, creating an impression in the minds of the jurors that the court favored the State.

Complainant, Michelle Bradshaw, is a dispatcher for the Vandalia police department. On May 22, 1991, she testified at a hearing in a Fayette County traffic case, No. 91-TR-816, People v. Earth, regarding mishandling of the traffic citations issued to Ms. Earth by the arresting officer, Robyn Shukar, a patrolman for the Vandalia police department. In the course of that testimony, Ms. Bradshaw made statements regarding the prior romantic involvement of defendant, a married man, with Ms. Earth, an underage woman, and regarding defendant's role in the initial undercharging of Ms. Earth by Shukar.

Three days later, defendant came to the Vandalia police department just after the complainant went on duty. He berated the complainant for revealing in the course of her testimony that defendant had an affair with Ms. Earth. Defendant's language was rife with profanity and invective. He screamed at Ms. Bradshaw, verbally abusing her for second-guessing a police officer, threatened to "nail" complainant and her fiance if they did anything wrong in the future, threatened to call the wife of the Vandalia chief of police and tell her that complainant was engaged in a sexual relationship with the chief of police, told complainant that she had better watch herself because defendant was going to get her, and invited complainant's fiance to fight with the defendant. Complainant left the dispatcher's booth, and defendant backed her up against the Coke machine in the lobby of the police department. Complainant described defendant as very upset, screaming and spitting in her face as he jabbed his finger at her and shook his fist. Because the complainant was so frightened at the time, she could not remember everything defendant said. She believed at several points that defendant, a large man, was going to strike her with his fists. Defendant turned to leave after he finished his diatribe, and complainant became angry because defendant had backed her into a corner and frightened her so badly with his verbal assault. She grabbed the bar on the front door of the lobby to prevent defendant from leaving and began to complain of his treatment of her. Defendant pushed the door open, and the confrontation continued in the street in front of the Vandalia police department. Insults were exchanged and the defendant drove away.

Complainant returned to the dispatcher's desk and called the Vandalia chief of police to relate what tad happened. She testified, "I was angry, I was upset, I was hurt, I was cryin, [sic] so hard I couldn't hardly [sic] talk to the chief on the phone." She cried continuously for one-half hour after defendant left and intermittently for another half-hour. Complainant, who is 5 feet, 6 1/2 inches tall, testified that she was physically intimidated by the defendant, who is 5 feet, 11 inches tall and weighs 240 pounds. Witnesses testified that after the incident the complainant was flushed, tearful, and shaky.

Defendant asserts that the evidence was insufficient to establish that he had the requisite intent to harass or annoy the complainant to allow him to be convicted under section 32-4a of the Criminal Code of 1961 (Code) (Ill. Rev. Stat. 1991, ch. 38, par. 32-4a). We disagree.

Section 32-4a of the Code provides as follows:

"A person who, with intent to harass or annoy one who had served as a juror or as a witness in a legal proceeding, because ofthe * * * testimony of such witness, communicates directly or indirectly with a juror or witness in such manner as to produce mental anguish or emotional distress or who conveys a threat of injury or damage to the property or person of such party or witness * * * commits a Class IV felony." Ill. Rev. Stat. 1991, ch. 38, par. 32-4a.

Harassment of a witness as statutorily defined is a specific-intent crime. ( People v. Nix (1985), 131 Ill. App. 3d 973, 975, 476 N.E.2d 797, 799.) Intent must of necessity in most instances be determined by the defendant's conduct and the circumstances surrounding the complained-of act, rather than by direct evidence. ( People v. Dugan (1992), 237 Ill. App. 3d 688, 700, 604 N.E.2d 1117, 1125.) In order to convict a defendant of harassment of a witness, the State must prove the defendant intended to harass or annoy. ( People v. Berg (1991), 224 Ill. App. 3d 859, 862, 586 N.E.2d 649, 650.) Defendant was charged by indictment under section 32-4a with having communicated with the complainant with the intent to harass or annoy in a manner such that it produced mental anguish and emotional distress.

Harassment is not defined in the Code. However, the definition of harassment in the Domestic Violence Act (Act) (Ill. Rev. Stat. 1991, ch. 40, par. 2311-3(6)) is instructive. Harassment is defined as:

"Knowing conduct which is not necessary to accomplish a purpose that is reasonable under the circumstances; would cause a reasonable person emotional distress; and does cause emotional distress * * ...

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