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11/30/94 PEOPLE STATE ILLINOIS v. JOE A. LIBBRA

November 30, 1994

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
JOE A. LIBBRA, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Montgomery County. No. 92-CF-6. Hon. Michael R. Weber and Hon. Rolland Tipsword, Judges Presiding.

Presiding Justice Lewis delivered the opinion of the court: Welch, J., and Maag, J., concur.

The opinion of the court was delivered by: Lewis

PRESIDING JUSTICE LEWIS delivered the opinion of the court:

Defendant, Joe A. Libbra, appeals from his conviction for the offense of intimidation (720 ILCS 5/12-6(a)(1) (West 1992)) and from an order revoking his probation for the same offense. On appeal, the following issues are presented for our review: (1) whether the indictment charging defendant with intimidation was sufficient; (2) whether defendant was proved guilty of the offense of intimidation beyond a reasonable doubt; (3) whether defendant has waived certain evidentiary and jury instruction issues; (4) whether the wording of defendant's probation order is in error; (5) whether the trial court abused its discretion in ordering defendant to pay fines as a condition of his probation; and (6) whether the trial court was correct in revoking defendant's probation. We affirm.

I. SUFFICIENCY OF INDICTMENT

The indictment is as follows:

"That sometime on January 13, 1992, at the Montgomery Service plant at 1600 North Historic Old Route 66 in the City of Litchfield in Montgomery County, Illinois, JOE A. LIBBRA, committed the offense of INTIMIDATION in that JOE A. LIBBRA, with the intent to cause Gary Rupert to omit the performance of any act, that being contact with certain persons specified by JOE A. LIBBRA, communicated to Gary Rupert a threat, pictorially and in writing, to harm, without lawful authority, the mother of Gary Rupert in violation of Chapter 38, Paragraph 12-6(a)(1), Illinois Revised Statutes."

The statute under which defendant was charged states as follows:

"A person commits intimidation when, with intent to cause another to perform or omit the performance of any act, he communicates to another, whether in person, by telephone or by mail, a threat to perform without lawful authority any of the following acts:

(1) Inflict physical harm on the person threatened or any other person or on property." 720 ILCS 5/12-6(a)(1) (West 1992).

On appeal, defendant contends that the indictment is fatally deficient for failing to (a) allege the manner of delivery as either in person, by mail, or by telephone, (b) allege that the threat was of "physical" harm, (c) describe the content of the communication that constituted the threat, and (d) identify the persons about whom the complainant was threatened.

Before trial, defendant filed a motion to dismiss the indictment, alleging that the statute does not prohibit communicating a threat pictorially. Defendant argued in the trial court and argues now on appeal that the statute allows only three methods of communication, in person, by mail, or by telephone. Since the indictment does not specifically allege which of these three exclusive methods of communications defendant made, he argues that the indictment is fatally deficient. In the trial court, defendant also raised certain constitutional issues, which he does not raise on appeal. However, for the first time on appeal, defendant raises the additional issues of the indictment's failure to allege physical harm, the content of the threatening communication, and the identity of the persons whom the complainant was to avoid.

Where an information or indictment is challenged before trial, it must strictly comply with the pleading requirements of the Code of Criminal Procedure of 1963, which requires the State, inter alia, to set forth the nature and elements of the offense charged. ( People v. Thingvold (1991), 145 Ill. 2d 441, 584 N.E.2d 89; 725 ILCS 5, 164 Ill. Dec. 877/111-3(a) (West 1992).) However, the standard is less stringent when the indictment or information is attacked for the first time on appeal; then it is sufficient if the indictment or information informs the accused of the precise offense charged with enough specificity so that the accused can prepare his defense and plead a resulting conviction as a bar to future prosecution arising out of the same conduct. Thingvold, 145 Ill. 2d 441, 584 N.E.2d 89, 164 Ill. Dec. 877.

Defendant's arguments regarding the failure to allege "physical" harm, the content of the threatening communication, and the identity of the persons with whom complainant was to avoid contact, which are raised for the first time on appeal, are not the types of errors that prevented defendant from defending himself or that will preclude him from arguing this conviction as a bar to future prosecutions for the same conduct. We note that the indictment sets forth the place where the communication was made, the Montgomery Service Plant at 1600 North Historic Old Route 66 in Litchfield, Illinois, and the date, January 13, 1992. The record demonstrates that defendant mounted an aggressive defense before, during, and after trial as to the alleged communication made on the place and date set forth in the indictment. Based upon this ...


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