Appeal from Circuit Court of Champaign County No. 99CF1667 Honorable Thomas J. Difanis Judge Presiding.
The opinion of the court was delivered by: Justice Cook
In January 2002, the trial court dismissed the charges against defendant, Erik S. Redwood, for failure to state an offense as a matter of law. The State appeals. We affirm.
On October 14, 1999, defendant was indicted for a hate crime, 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 with disorderly 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 the charges failed to state a crime as a matter of law and that his conduct was pure speech protected by the first amendment (U.S. Const., amend. I). In his motions, defendant admits that the incident occurred but denies that the incident was motivated by reason of the perceived race of the victim, as required by the hate crime statute (720 ILCS 5/12-7.1 (West 1998)). Defendant argued that Welch is an attorney, and the incident stemmed from Welch's prior representation of defendant in a former case. In January 2002, the trial court heard argument on both motions and dismissed both charges. This appeal followed.
The State raises three issues on appeal: (1) the trial court erred in finding that only "fighting words" can constitute disorderly conduct when words alone are alleged; (2) the trial court erred in finding the words used in this case were not "fighting words" and, therefore, could not constitute the crime of disorderly conduct; and (3) the trial court erred in finding that words had to be spoken to more than one individual to cause a breach of the peace.
The offense of disorderly conduct is broadly defined. "A person commits disorderly conduct when he knowingly *** [d]oes any act in such [an] unreasonable manner as to alarm or disturb another 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 from invasion by the state by the fourteenth amendment. See Chaplinsky v. New Hampshire, 315 U.S. 568, 570-71, 86 L. Ed. 1031, 1034, 62 S. Ct. 766, 768 (1942). However, "[t]here are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any [c]onstitutional problem. These include *** the insulting or 'fighting' words ***." Chaplinsky, 315 U.S. at 571-72, 86 L. Ed. at 1035, 62 S. Ct. at 769. "Fighting words" are personally abusive epithets which, when addressed to an ordinary citizen, as a matter of common knowledge, inflict injury or are inherently likely to provoke an immediate breach of the peace. See Chaplinsky, 315 U.S. at 572, 86 L. Ed. at 1035, 62 S. Ct. at 769; People v. Allen, 288 Ill. App. 3d 502, 507, 680 N.E.2d 795, 799 (1997). A statute that punishes spoken words alone, as section 26-1 of the Criminal Code of 1961 (Code) (720 ILCS 5/26-1 (West 2000)) may, cannot withstand constitutional attack unless it cannot be applied to speech protected by the first and four- teenth amendments, even if the speech punished is vulgar or offensive. Lewis v. City of New Orleans, 415 U.S. 130, 134, 39 L. 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 used are "fighting words." See People v. Slaton, 24 Ill. App. 3d 1062, 1063-64, 322 N.E.2d 553, 554 (1974). The trial court did not err in finding that only "fighting words" may satisfy the statute.
A trial court may dismiss a charge in a criminal case on the grounds that the charge does not state an offense. 725 ILCS 5/114-1(a)(8) (West 2000). Dismissal of the charge on such grounds does not prevent the filing of a new charge. 725 ILCS 5/114-1(e) (West 2000). Nevertheless, the State may appeal from an order dismissing a charge for any of the grounds enumerated in section 114-1 of the Code of Criminal Procedure of 1963 (Code of Criminal Procedure) (725 ILCS 5/114- 1 (West 2000)). 145 Ill. 2d R. 604(a)(1). The standard of review of a defendant's motion to dismiss an indictment is whether the indictment strictly complies with the pleading requirements of section 111-3 of the Code of Criminal Procedure. People v. Oaks, 169 Ill. 2d 409, 442, 662 N.E.2d 1328, 1342 (1996). Section 111-3(a)(3) of the Code of Criminal Procedure requires that an indictment adequately inform an accused of a charged offense by setting forth the nature and elements of the offense charged. 725 ILCS 5/111-3(a)(3) (West 2000). The question is not whether the alleged offense could have been described with greater certainty, but whether the charge is stated with sufficient particularity to enable the accused to prepare a proper defense. People v. Becker, 315 Ill. App. 3d 980, 997, 734 N.E.2d 987, 1001 (2000). When addressing a defendant's motion to dismiss a charge for failure to state an offense, a trial court is limited to assessing the legal sufficiency of the charge and may not evaluate the evidence that the parties might present at trial. People v. Soliday, 313 Ill. App. 3d 338, 342, 729 N.E.2d 527, 530 (2000). We review the dismissal de novo. People v. Smith, 259 Ill. App. 3d 492, 495, 631 N.E.2d 738, 740 (1994).
A charge that sets forth elements that do not amount to an offense may be dismissed under section 114-1(a)(8) of the Code of Criminal Procedure. For example, a charge that simply states that a defendant unlawfully possessed a weapon, a hacksaw blade, is properly dismissed. Hacksaw blades are not defined as weapons by any statute and are not considered weapons per se. A hacksaw blade may be a weapon by virtue of the way it is used, but absent allegations 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 criminal sexual assault dismissed where it did not define the "position of trust" the defendant held in relation to the victim).
A charge simply that defendant committed disorderly conduct by saying "good morning" would appear not to state an offense. The addition of the statutory language "in such an unreasonable manner as to alarm or disturb another and to provoke a breach of the peace" would not be sufficient to create an offense. Where the statute does not define or describe the act or acts constituting the offense, a charge couched in the language of the statute is insufficient. Rather, the facts that constitute the crime must be specifically set forth. People v. Nash, 173 ...