No. 2--94--1465
________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Stephenson County.
)
Plaintiff-Appellee, )
) Nos. 93--CM--1836,
v. ) 93--CM--1837
)
DEAN L. SCOTT, ) Honorable
) Barry R. Anderson,
Defendant-Appellant. ) Judge, Presiding.
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JUSTICE INGLIS delivered the opinion of the court:
On December 15, 1993, defendant, Dean L. Scott, was charged by
complaint with the misdemeanor offenses of disorderly conduct
(presumably 720 ILCS 5/26--(1)(a)(1) (West 1992)) (No. 93--CM--
1836) and resisting or obstructing a peace officer (resisting) (720
ILCS 5/31--1 (West 1992)) (No. 93--CM--1837). Following a bench
trial on November 7, 1994, the court found defendant guilty of both
offenses and sentenced him to serve concurrent terms of 18 months'
conditional discharge. Defendant was ordered to serve 14 days in
the county jail with day-for-day credit for the disorderly conduct
offense and 7 days in the county jail without day-for-day credit
for the resisting offense.
Defendant appeals, contending that the trial court erred (1)
in treating as untimely (waived) defendant's challenge to the
sufficiency of the disorderly conduct complaint at the close of the
State's case in chief, and in otherwise denying defendant's motion
to dismiss the charge as insufficient; and (2) in denying day-for-
day credit against the sentence for the resisting offense. We
affirm in part, as modified, and reverse in part.
The facts will not be recited here in detail except as they
are needed to resolve the issues raised on appeal. The charges of
disorderly conduct and resisting or obstructing a police officer
arose from an incident at the Freeport high school on December 15,
1993. Sergeant Michael Hannan of the Freeport police department
was patrolling at the high school parking lot when he observed
several altercations between students at the school. Defendant was
part of the crowd of students which had gathered to watch the
altercations. In Hannon's attempt to separate the students,
defendant came up to him, telling Hannan that he had no business
being there and that he could not tell the students what to do.
Defendant yelled at Hannan and walked in and out of the crowd, with
four or five other students following him.
Two other officers arrived to assist Hannon. Hannon asked
defendant several more times to leave the scene or he would be
arrested. Defendant disregarded Hannon's directives and continued
to yell at Hannon and the other officers. According to testimony,
the officers attempted to arrest defendant. Defendant resisted,
kicking and flailing his arms, while the three officers tried to
handcuff him. Eventually, Hannon needed to spray capstun in
defendant's face in order to handcuff him. Defendant was finally
arrested and ticketed with resisting or obstructing a peace officer
and with disorderly conduct.
At trial, following the State's case in chief, defendant moved
for a directed finding of not guilty on the disorderly conduct
charge. Defendant argued that the charge failed to state a
statutory offense. The court concluded that defendant waived this
issue by going to trial on the ticket rather than requesting the
more specific formal information, verified complaint, or bill of
particulars. Thereafter, defendant testified on his own behalf,
denying the charges against him.
On November 10, 1994, the trial judge found defendant guilty
of both resisting or obstructing a peace officer and disorderly
conduct and was sentenced. On December 15, 1994, the court heard
and denied defendant's motion to vacate the judgments or to
reconsider the sentences.
On appeal, defendant first argues that his challenge to the
sufficiency of the complaint at the close of the State's case
should not have been deemed waived. See, e.g., People v. Johnson,
69 Ill. App. 3d 248, 250-51 (1979) (motion to dismiss during trial
did not waive issue and stricter standard applied to determine
sufficiency of charge). The State contends that defendant's
challenge to the complaint was untimely because it came at the
close of the State's case and should be reviewed under the more
relaxed Gilmore standard applicable to a challenge made after
trial, that is, in a motion in arrest of judgment or in an appeal.
People v. Gilmore, 63 Ill. 2d 23, 29 (1976); see People v. Pujoue,
61 Ill. 2d 335, 339 (1975); 725 ILCS 5/116--2 (West 1994) (motion
in arrest of judgment; applies relaxed standard). (The Gilmore
standard is sometimes referred to as the Pujoue standard.)
However, even in attempting to invoke the more relaxed Gilmore
standard, the State fails to address in any meaningful way whether
the complaint was sufficiently specific to charge the offense of
disorderly conduct. We believe that established precedent supports
defendant's position, rather than the State's.
Under the more lenient Gilmore standard, a complaint
challenged in a motion for arrest of judgment or for the first time
on appeal is deemed sufficient if it "apprised the accused of the
precise offense charged with sufficient specificity to prepare his
defense and allow pleading a resulting conviction as a bar to
future prosecution arising out of the same conduct." Pujoue, 61
Ill. 2d at 339; see People v. Benitez, 169 Ill. 2d 245, 257-59
(1996); People v. Thingvold, 145 Ill. 2d 441, 448 (1991).
When an instrument fails to state an offense, this constitutes
a defect implicating due process concerns, and the defective charge
may be attacked at any time. People v. DiLorenzo, 169 Ill. 2d 318,
321 (1996). Such a challenge to a complaint may be made before or
during the trial--even at end of the State's case. People v.
Harris, 205 Ill. App. 3d 873, 876 (1990); People v. Stanley, 42
Ill. App. 3d 99, 100 (1976). Thus, section 114--1(a)(8) of the
Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/114--
(1)(a)(8) (West 1994)) permits a defendant to bring a motion to
dismiss for the failure to state an offense both before and during
trial. Johnson, 69 Ill. App. 3d at 251, citing People v. Clutts,
43 Ill. App. 3d 366, 370 (1976) (cited with approval in Harris, 205
Ill. App. 3d at 876).
When the sufficiency of the complaint is attacked in the trial
court either before or during trial, a court determines whether the
instrument strictly complies with the requirements of section 111--
3(a) of the Code (725 ILCS 5/111--3(a) (1994)). Benitez, 169 Ill.
2d at 257-59; Thingvold, 145 Ill. 2d at 448; Johnson, 69 Ill. App.
3d at 250-51 (strict standard applied). Under that section of the
Code--insofar as it is relevant here--the charge must be in writing
and allege the commission of an offense by (1) stating the name of
the offense; (2) citing the statutory provision alleged to have
been violated; and (3) setting forth the nature and elements of the
offense charged. 725 ILCS 5/111--3(a) (West 1994); Stanley, 42
Ill. App. 3d at 100. The failure to allege an element of the
offense sought to be charged is a fundamental defect which renders
the complaint void, and it cannot be amended as in the case of
simple formal defects. Johnson, 69 Ill. App. 3d at 250. While a
defendant may request a bill of particulars to supplement a
sufficient charge so as to assist him in preparing his defense, a
bill of particulars cannot be used to cure a void charge. People
v. Meyers, 158 Ill. 2d 46, 53 (1994).
Our review of the law persuades us that defendant did not
waive the issue by challenging the complaint at the end of the
State's case and seeking a directed finding of acquittal. It was
error for the trial court to consider his motion waived as
untimely. Furthermore, the Gilmore standard does not apply, and
the complaint must strictly comply with all of the statutory
requirements of section 111--(3)(a) of the Code.
The "Non-Traffic Complaint and Notice to Appear," dated
December 15, 1993, states the name and address of defendant, and
the county, and alleges that defendant unlawfully committed there
the following offense:
"Disorderly Conduct (DESCRIBE) After being advised to leave
the area several times Dean Scott then pushed officer saying
he was going no where. IN VIOLATION OF SECTION 38 CHAPTER 26--
1 OF THE ILLINOIS REVISED STATUTES."
This complaint is fatally defective under the strict pleading
requirements of section 111--3(a) of the Code. Although it states
the name of the offense and the general statutory section, it
fails to specify the subsection for the particular conduct
constituting the offense and fails to specify the nature and
elements of the offense with particularity. Presumably, the
disorderly conduct sought to be charged was the following
statutory offense:
"(a) A person commits disorderly conduct when he
knowingly:
(1) 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 1992).
Although the complaint here suggests an act of defendant that
could be deemed unlawful, such as a battery or obstructing a peace
officer, it does not clearly and specifically articulate how the
conduct of defendant was related to the elements of the offense of
disorderly conduct: whether it was knowing and unreasonable, how
it alarmed or disturbed another, or how it tended to provoke a
breach of the peace. The statute defining disorderly conduct is
broad and general in nature and may be applied to many varied
activities which are criminally sanctionable depending upon the
surrounding circumstances. People v. Slaton, 24 Ill. App. 3d 1062,
1063 (1974). A given type of conduct alone is not determinative in
rendering it culpable as disorderly conduct. The relationship
between the alleged conduct and the public order or the right of
others not to be molested or harassed is crucial in determining the
necessity of the criminal sanction. Slaton, 24 Ill. App. 3d at
1063. The emphasis of the culpable conduct is on its
unreasonableness and its tendency to disturb (Slaton, 24 Ill. App.
3d at 1063) or to evoke a violent response (People v. Kellstedt, 29
Ill. App. 3d 83, 85 (1975)). Because the statute defining
disorderly conduct is so broadly worded, the offense cannot be
charged in general terms. The complaint must describe and
specifically set forth the acts which constituted the offense.
People v. Oswald, 69 Ill. App. 3d 524, 528 (1979). The charge must
contain specific factual allegations that the particular conduct
was knowing and unreasonable and state, at least minimally, some
connection between the conduct and its tendency to disturb the
public order, or to elicit a violent response or a breach of the
peace. Kellstedt, 29 Ill. App. 3d at 85.
Here, the complaint does not even track the language of the
statute, much less does it identify the elements of the offense.
It alleges arguably offensive conduct without establishing the
relationship of that conduct to the statutory elements of the
offense to be proved, and defendant must guess as to the
relationship of that conduct to those elements in preparing his
defense. We cannot condone this type of pleading. We conclude
that the complaint is fatally defective, and it was error for the
trial court to deny defendant's motion. The remedy in such a case
is to reverse the conviction without a remand. Stanley, 42 Ill.
App. 3d at 102.
Next, defendant argues that the trial court erred in denying
defendant day-for-day credit on the seven-day sentence for the
resisting offense. Under the County Jail Good Behavior Allowance
Act, as a reward for good behavior while confined in jail, a
defendant may be entitled to a credit of one day against each day
of the sentence served in the county jail unless he is subject to
an exception. See 730 ILCS 130/1 et seq. (West 1994). One such
exception which bars a defendant from receiving the credit is if
the defendant "inflicted physical harm upon another person in
committing the offense for which he is confined." 730 ILCS 130/3
(West 1994). Here, the evidence in the record is insufficient to
show that anyone was physically harmed for purposes of this
statute. In construing the term under the statute, physical harm
has been deemed synonymous with bodily harm. People v. Wenkus, 171
Ill. App. 3d 1064, 1066-67 (1988). Officer Tania Alich testified
that she did not receive any physical injury in the scuffle with
defendant. We do not believe this case demonstrates the type of
bodily harm contemplated by the statute or discussed in Wenkus
(defendant pushed person down the stairs; she fell, hit her chin
and felt pain). Defendant's sentence was stayed pending appeal.
When he serves his sentence, he will qualify for the credit if he
complies with the conditions of the statute.
Defendant's disorderly conduct conviction and sentence
therefore are reversed. The sentence for the resisting offense is
modified to allow day-for-day credit. In all other respects, the
judgments of the circuit court are affirmed.
Affirmed in part as modified and reversed in part.
McLAREN, P.J., and THOMAS, J., concur.