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June 2, 1997


Appeal from Circuit Court of Schuyler County. No. 94CM12. Honorable Carson D. Klitz, Judge Presiding.

Honorable Robert W. Cook, J., Honorable John T. McCullough, J. - Concur, Honorable James A. Knecht, J. - Concur. Justice Cook delivered the opinion of the court. McMULLOUGH and Knecht, JJ., concur.

The opinion of the court was delivered by: Cook

The Honorable Justice COOK delivered the opinion of the court:

Following a bench trial, defendant Loyd Dale Allen was found guilty of five counts of disorderly conduct. He was fined $250 and sentenced to one year's probation and seven weekends in jail. Defendant appeals, contending that the State failed to prove beyond a reasonable doubt that his conduct provoked a breach of the peace, an essential element of the offenses. See 720 ILCS 5/26-1(a)(1) (West 1994). We affirm in part, reverse in part, and remand.

All five counts of disorderly conduct were premised on statements of a sexual or threatening nature allegedly spoken by defendant to minor boys. The complainants, T.H and R.P., were 16 years old at the time of the incidents, while defendant was 47 years old.

The first incident (count I) occurred sometime in February 1993. T.H. testified that he and his friends were on the north side of the Rushville Square in Rushville, Illinois, when defendant parked nearby. Defendant asked T.H. why he had parked his car in front of defendant's house a few days earlier. Defendant then answered his own question, stating that he knew T.H. had attended a party next door and that defendant "knew [defendant's neighbors] were all gay." When T.H. denied attending the party, defendant responded that he would not hold it against T.H., "because he could suck [T.H.'s] dick better than any one of them guys." T.H. testified that defendant's comments "kind of scared me." T.H. walked away, and defendant did not follow. This was T.H.'s first contact with defendant.

The next three incidents (counts II through IV) apparently all occurred at the Rushville IGA, a grocery store where T.H. and R.P. worked. However, there was no evidence at trial regarding where count V occurred. Count II arose from an August 1993 encounter between defendant and R.P. R.P. testified that he was bagging groceries when defendant started talking to him. Defendant placed his arm on R.P. and said, "You are good with your hands. I bet you are good with other things with your hands." Defendant also invited R.P. to his house. After this incident, defendant started coming to the IGA on an almost daily basis.

Count III was based on a November 1993 incident. Defendant told both T.H. and R.P. "that if [they] let anybody know or told anybody about what was going on that he could--he would take [them] down with him and start rumors" that they were "queer." Count IV arose from an incident that occurred shortly thereafter. As T.H. was leaving the Rushville IGA, defendant asked him "if [he] had learned to swallow yet." Defendant then told T.H. that he knew what T.H. drove, where he lived, when he worked, and how to get a hold of T.H. whenever he wanted.

According to the information, the incident underlying count V occurred in December 1993 in Schuyler County, but the testimony at trial established neither the time nor place of this final incident. On this occasion, defendant asked R.P. where he could find T.H. When R.P. responded that T.H. was at a party, defendant mentioned "there were queers there." Defendant then asked R.P. if he or T.H. "could suck better."

Maxine Logan, the night manager of the Rushville IGA, testified that defendant would circle the store nightly until he walked past the carry-out boys. T.H. would work in the back room to avoid contact with defendant. On one occasion, R.P. was unwilling to leave the store alone because defendant had been circling the store. On another occasion, Logan overheard defendant tell R.P. to come to his workplace, "and we will do some things, but you cannot tell anybody."

Defendant denied making any of the statements. Defendant stated the only reason he knew R.P. was because R.P. had vandalized defendant's house. (R.P. admitted he was driving a couple of his friends around when his friends "egged" defendant's car and house.) Several of defendant's neighbors testified that defendant was a quiet man, who never invited people to his house.

As a preliminary matter, we note that defendant did not file a post-trial motion. Normally, the failure to raise an issue in a written post-trial motion results in a waiver of that issue on appeal. People v. Enoch, 122 Ill. 2d 176, 187, 522 N.E.2d 1124, 1130, 119 Ill. Dec. 265 (1988). However, one exception to this waiver rule are challenges to the sufficiency of the evidence. Enoch, 122 Ill. 2d at 190, 522 N.E.2d at 1131-32. Defendant's claim that the State failed to prove a material allegation (i.e., defendant's conduct provoked a breach of the peace) may be raised for the first time on appeal. People v. Depper, 256 Ill. App. 3d 179, 185, 629 N.E.2d 699, 703-04, 196 Ill. Dec. 154 (1994).

Defendant was charged under section 26-1(a)(1) of the Criminal Code of 1961, which provides that a defendant commits the offense of disorderly conduct when he knowingly "does any act in such unreasonable manner as to alarm or disturb another and to provoke a breach of the peace." 720 ILCS 5/26-1(a)(1) (West 1994). This court has held that defendant's conduct "must actually bring about a breach of the peace and not merely tend to do so." People v. Bradshaw, 116 Ill. App. 3d 421, 422, 452 N.E.2d 141, 142, 72 Ill. Dec. 209 (1983). But cf. People v. Ellis, 141 Ill. App. 3d 632, 633, 491 N.E.2d 61, 62, 96 Ill. Dec. 247 (1986) ("Although, under most circumstances, the statute probably does not require that a breach of the peace actually occur as a result of defendant's conduct, the relationship between the alleged conduct and the public order must be clearly shown"). It is not necessary that the act occur in public, only that defendant's actions disturb the public order. "A breach of the peace may as easily occur between two persons fighting in a deserted alleyway as it can on a crowded public street." People v. Davis, 82 Ill. 2d 534, 538, 413 N.E.2d 413, 415, 45 Ill. Dec. 935 (1980).

The term "breach of the peace" defies easy definition. "The term 'breach of the peace' has never had a precise meaning in relation to specific conduct. Yet from its early common law origin to the present it has received a fairly well defined gloss. 'The offense known as breach of the peace embraces a great variety of conduct destroying or menacing public order and tranquility. It includes not only violent acts but acts and words likely to produce violence in others.' Cantwell v. State of Connecticut, 310 U.S. 296, 308, [84 L. Ed. 1213, 1220, 60 S. Ct. 900, 905] (1940). The term connotes conduct that creates consternation and alarm. It is an indecorum that incites public turbulence; yet violent conduct is not a necessary element. The proscribed conduct must be voluntary, unnecessary, and contrary to ordinary human conduct. On the other hand, the commonly held understanding of a breach of the peace has always exempted eccentric or unconventional conduct, no matter how irritable to others. It seems unnecessary to add that whether a ...

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