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November 15, 1996


Appeal from the Circuit Court of the 14th Judicial Circuit, Rock Island County, Illinois. No. 95--CF--838. Honorable Larry Vandersnick, Judge Presiding.

Released for Publication December 23, 1996.

Present - Honorable Michael P. Mccuskey, Justice, Honorable Kent Slater, Justice, Honorable John F. Michela, Justice. Justice McCUSKEY delivered the opinion of the court. Slater, and Michela, JJ., concur.

The opinion of the court was delivered by: Mccuskey

JUSTICE McCUSKEY delivered the opinion of the court:

The defendant, Douglas E. Nitz, who is white, appeals from his conviction on two counts of the offense of hate crime (720 ILCS 5/12-7.1 (West 1994)), based on his racially-motivated harassment of his neighbor, Rochelle Gaines, who is African-American. On appeal, Nitz raises several constitutional challenges to the Illinois hate crime statute. For the reasons which follow, we affirm.


Nitz was charged with three counts of hate crime (720 ILCS 5/12-7.1 (West 1994)) and one count of contributing to the delinquency of a minor (720 ILCS 130/2a (West 1994)). The hate crime charges were based on the predicate crimes of disorderly conduct (720 ILCS 5/26-1 (West 1994)) and misdemeanor criminal damage to property (720 ILCS 5/21-1 (West 1994)). The alleged incidents occurred in August 1995.

The Nitz family lives across the street from the Gaines family in Milan, Illinois. The State maintained that on one occasion, Nitz's son, Brian, became engaged in a shouting match with Gaines' children. As things escalated, Brian threw a glass bottle and some rocks at the Gaines residence. Gaines testified that some of the rocks struck her house and a glass fragment struck her. As Brian threw the items he screamed at Gaines, calling her a "black nigger bitch" several times.

Nitz, a self-described "incomplete paraplegic," emerged from his house in his wheelchair to determine what was going on. Gaines testified that Nitz watched Brian throw things and yell racial epitaphs and did nothing to intervene. In addition, Nitz yelled at Gaines that "if it wasn't for the nigger moving in the neighborhood we wouldn't have all these problems. Ever since this nigger moved in the neighborhood has been nothing but problems. Niggers is nothing but problems. What they needs to do is go back to Africa." Gaines testified that after approximately fifteen minutes of abuse, Brian's mother emerged from the house and forced Brian inside. Gaines was extremely upset, hurt, and moved to tears by the incident. As a result, she called the Milan police department.

On another occasion, Nitz and a friend of his were standing on the street removing a police sticker from Nitz's car when Gaines and her children pulled into her driveway. Gaines testified that as she and her children walked towards their front door, Nitz or his friend spit on her and Nitz called her a "black bitch" and a "fucking nigger bitch." Nitz told Gaines that he "was sick and tired of the bullshit" and there had "been nothing but problems" since "you niggers moved into the neighborhood." Gaines said the encounter left her in tears and ashamed because her children were subjected to Nitz's use of profanity and racial slurs. She again notified the Milan police department regarding Nitz's behavior.

Gaines testified that a few days later, Nitz, accompanied by a friend, confronted her and accused her of calling the police to get his car towed. Nitz told her that she was a "damned nigger bitch" and said he would "get" her. Gaines testified that she was alarmed and disturbed by Nitz's unspecified threat. Consequently, she called the Milan police department, again complaining about Nitz's racial slurs.

Several of Nitz's neighbors testified that they witnessed numerous arguments and disputes between Nitz and Gaines. Nitz referred to more than one neighbor as a "nigger lover" when he perceived that a neighbor was intervening in the disputes.

Captain Steven Doyle, a 26-year veteran of the Milan police department, testified that, for the year 1995, the Milan police department responded to 65 calls and incidents regarding the Nitz and Gaines households.

Ultimately, following a jury trial, Nitz was acquitted on two counts of violating the hate crime statute and was convicted on two other counts of committing a hate crime. Additionally, Nitz was acquitted of contributing to the delinquency of a minor. At his sentencing hearing, the trial court fined Nitz and placed him on 30 months' probation, ...

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