People v. Moore , 2024 IL App (1st) 230497-U ( 2024 )

2024 IL App (1st) 230497-UFIRST DISTRICT,
FIRST DIVISION
February 13, 2024
No. 1-23-0497
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
IN THE
APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, )
) Appeal from the
Plaintiff-Appellee, ) Circuit Court of
) Cook County.
v. )
) No. 22400448501
GREGG MOORE, )
) Honorable
Defendant-Appellant. ) John A. Fairman,
) Judge Presiding.
)
JUSTICE COGHLAN delivered the judgment of the court.
Justice Pucinski specially concurred.
Presiding Justice Fitzgerald Smith dissented.
ORDER
¶1 Held: The evidence failed to establish that the defendant’s behavior resulted in a breach
of the peace and was insufficient to prove the defendant guilty of disorderly conduct
beyond a reasonable doubt.
¶2 Following a bench trial in the circuit court of Cook County, defendant Gregg Moore was
convicted of disorderly conduct and sentenced to ten days in jail and two years’ conditional
discharge. On appeal, defendant challenges the sufficiency of the evidence to convict him, arguing
No. 1-23-0497
that the State failed to prove beyond a reasonable doubt that he acted unreasonably and provoked
a breach of the peace. In addition, he asserts that the trial court improperly shifted the burden of
proof and relied on an erroneous standard in finding him guilty. For the following reasons, we
reverse the judgment of the circuit court.
¶3 BACKGROUND
¶4 In October 2022, defendant was charged with two counts of misdemeanor disorderly
conduct (720 ILCS 5/26-1(a)(1) (West 2022)) for an incident that transpired at the Oak Park Public
Library on August 28, 2022. According to the charges, on that date, the 67-year-old defendant
knowingly approached two 14-year-old girls, M.H. and B.H., inquired where they lived and
repeatedly asked to drive them home in such a manner as to alarm and disturb them, and provoke
a breach of the peace.
¶5 Defendant chose to represent himself and proceeded to a bench trial, at which the following
relevant evidence was adduced.
¶6 M.H. testified that she was born in 2008 and that in August 2022, she was preparing to
enter ninth grade. On August 28, 2022, M.H. was on the third floor of the Oak Park Library with
her friend, B.H., printing out pictures to hang up in their rooms. Neither girl’s parents were at the
library. At approximately 3:40 p.m., M.H. was standing at a computer near a printer. B.H. was
sitting a few feet behind M.H. at a table with three chairs. About “10 or 15” other people were in
the library, which was quiet. M.H. “noticed [that she] was being *** looked at” by defendant, who
made eye contact with her “a few times.” After briefly approaching the corner of defendant’s table,
M.H. went and sat down with B.H.
¶7 Shortly thereafter, defendant, who neither girl knew, “walked up to [her and B.H.] and
asked to make us an offer.” Defendant initially “asked us if we wanted to listen to his music,” and
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“we said no thank you.” He then asked whether they lived in the area, which made M.H. feel
“uncomfortable.” When defendant sat down at the same table with the girls and “offered to give
[them] a ride” home, they both said no and asked him to leave. Instead of leaving, defendant
continued asking the girls if “he could give [them] a ride home” and they “still said no, and then
[B.H.] *** raised her voice at him and started yelling at him to get away.” After that, defendant
“started to get up and walk[ed] away eventually.” A few minutes later, B.H. got up and “told the
librarian what happened.”
¶8 B.H., who was also born in 2008, testified that on August 28, 2022, she was sitting at a
table with M.H. on the third floor of the Oak Park Library. At about 3:40 p.m., defendant
approached their table, sat down uninvited, and began asking them to listen to his music. They
“said no politely.” Defendant spoke to them in “a very low tone.”1 While holding his hands in a
“praying position,” he repeatedly asked them to listen to his music. B.H. and M.H. said “no over
and over again,” at least five or six times. Defendant then asked whether they lived near Oak Park
and offered to drive them home. The girls declined defendant’s offer, but he continued pleading
with them. B.H. felt “irritated at the fact that [she] had to keep repeating [herself],” and “mostly
scared” because she could see on defendant’s face that their repeated rejections were beginning to
frustrate him.
¶9 After saying no to defendant “a good *** 15 or 16 times” to no avail, B.H. stood up, looked
defendant in the eyes, and loudly yelled, “We already said no, now get the f[***] away from us
*** [T]hat’s when he kind of starting [sic] putting his hands like this, as in like okay. He was
saying okay, okay, and he was backing up, and that’s when he continued to go back to his seat.”
Regarding whether anyone “reacted to her outburst,” B.H. testified, “some people *** just looked”
1
Contrary to the dissent’s representation, there is no evidence that defendant used a “conspiratorial”
tone in the library. Infra ¶ 57.
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No. 1-23-0497
and then went “back to doing whatever they do” and “one lady *** came up to [her] and M.H. and
said *** ‘Guys, what happened? Was he bothering you or something?”
¶ 10 Video surveillance footage published at trial indicates, as follows: At 3:40:37, defendant
was sitting alone at a computer station wearing headphones when M.H. briefly approached the
desk in front of him; approximately 16 seconds later, at 3:40:53, M.H. turned around and sat down
at a table where B.H. was already sitting; at 3:41:23, defendant walked over and sat down at the
table where the girls were sitting; from 3:41:38 until 3:42:14, defendant remained at the same table
with M.H. and B.H.; at 3:42:14, defendant briefly got up from the table and stepped away, but
turned back around and sat down again; at 3:42:30 (16 seconds after he sat back down), defendant
got up and returned to his original seat at the computer; at 3:42:33, two men seated at a computer
table nearby looked up in the direction of B.H., M.H., and defendant and two other women turned
around and appeared to be looking at defendant as he walked away; at 3:43:14, B.H. got up from
her table and walked into another room of the library; at 3:43:27, M.H., who was standing near a
printer, ran out of the frame in the same direction as B.H.; at 3:43:43, M.H. returned to the printer
in the frame; at 3:43:49, defendant gathered his items, got up, and exited the frame; at 3:43:58,
M.H. ran out of frame again; at 3:44:14, M.H. and B.H. returned to the same table where they were
sitting during the incident.
¶ 11 After the State rested its case-in-chief, defendant testified that on August 28, 2022, he was
at the Oak Park Library, listening to some music on his computer. “[A] lady was looking,” so he
beckoned to her, and she approached. When he asked her if she would like to listen to his music,
she walked away. Defendant saw her sitting at a table with another person, so he went over to them
because he “thought it was necessary for [him] to clarify” what he had just asked her friend.
Defendant asked both individuals if they lived near or far from the library, but neither answered.
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Defendant admitted that he kept repeating this question because neither responded to him. He
stated that one of them then “gave an outburst and said leave my younger sister alone.” Defendant
was “embarrassed and shocked,” and went back to his seat before he “saw her going to the
librarian.” Defendant took his things and left the library. He was arrested several days later.
¶ 12 During defendant’s closing argument, the trial court twice asked him, “[D]o you find
anything problematic of a grown man approaching a table of two young girls sitting by themselves
and asking them would they like a ride home?” Defendant agreed that it was “very problematic.”
¶ 13 After closing arguments, the trial court found defendant guilty of two counts of disorderly
conduct. In making this finding, the court stated that even if it disregarded the testimony of the
two victims, defendant admitted, and the video surveillance confirmed, that defendant approached
“two young ladies at the public library who were sitting alone by themselves and asked them
whether or not they wanted a ride home.” The court continued, “[a] grown man, according to you,
approaching two young ladies and asking them whether or not they would like a ride home you
say [sic] is problematic. So based off what you told me there is without question a finding of guilty
in regards” to both counts.
¶ 14 The defendant’s sentencing hearing was conducted immediately after the court entered its
findings. The State argued that defendant should be sentenced to jail time. In support, it offered
the victim impact statements of B.H. and her mother and pointed out that defendant had two prior
misdemeanor convictions: (1) a 2014 conviction for criminal trespass to property for which he
received 24 months’ conditional discharge, and which was terminated satisfactorily; and (2) a 2011
conviction for obstruction of a peace officer for which he received 30 days in jail.
¶ 15 In mitigation, defendant explained that the obstruction conviction occurred because he was
attempting to reinstate a dismissed case related to his attempt to run for office and the criminal
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trespass to property conviction resulted from his attempt to use a bathroom in the Illinois Appellate
Court building in Chicago. Defendant also represented that his educational background included
various graduate and post-graduate degrees.
¶ 16 After hearing arguments from both parties, the trial court stated:
“I asked you a question in regards to whether or not you thought it was inappropriate for a
grown man to approach two young ladies in a library who were sitting alone and ask
whether or not they would like a ride home. Without getting into anything further, you and
I both agree that’s wrong. Someone with as many degrees as you have you should know
better than anybody else. I find that problematic. I find what you did problematic. I find
what you testified to problematic.”
The trial court sentenced defendant to ten days in Cook County jail and two years of conditional
discharge.
¶ 17 Defendant subsequently filed a pro se motion for a “fresh trial,” which the trial court treated
as a motion for a new trial. In denying that motion, the trial court found that there “was more than
overwhelming evidence or sufficient evidence without question to say beyond a reasonable doubt
that [the defendant] was guilty of the charges of disorderly conduct.”
¶ 18 ANALYSIS
¶ 19 Sufficiency of the Evidence
¶ 20 On appeal, defendant asserts that the State failed to prove beyond a reasonable doubt that
he acted unreasonably or caused a breach of the peace to sustain a conviction for disorderly
conduct. Specifically, defendant argues that his interaction with M.H. and B.H. lasted less than a
minute, involved him quietly asking non-threatening questions, and had a minimal effect on the
other library patrons. For the following reasons, we find the evidence insufficient to sustain
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defendant’s conviction.
¶ 21 It is well-settled that when reviewing a challenge to the sufficiency of the evidence, the
relevant question is whether, after viewing the evidence in the light most favorable to the State,
any rational trier of fact could have found the essential elements of the crime beyond a reasonable
doubt. See People v. Jones, 2023 IL 127810, ¶ 28; People v. Brown, 2013 IL 114196, ¶ 48; People
v. Cunningham, 212 Ill. 2d 274, 280 (2004). This standard of review applies regardless of whether
the evidence is direct or circumstantial or whether the defendant received a bench or a jury trial.
People v. Cline, 2022 IL 126383, ¶ 25.
¶ 22 It is the responsibility of the trier of fact to determine witness credibility, resolve conflicts
in testimony, and to weigh the evidence presented at trial and draw reasonable inference therefrom.
See Brown, 2013 IL 114196, ¶ 48; see also People v. Pryor, 372 Ill. App. 3d 422, 430 (2007). In
weighing the evidence, the fact finder is not required to disregard reasonable inferences that
naturally flow from the evidence, or search for any possible explanation consistent with innocence
and raise it to the level of reasonable doubt. People v. Jackson, 232 Ill. 2d 246, 281 (2009). A
criminal conviction will be reversed only where the evidence is so unreasonable, improbable, or
unsatisfactory that it creates a reasonable doubt of the defendant’s guilt. Brown, 2013 IL 114196,
¶ 48. While trial courts are given great deference in their findings, “this deference does not require
a mindless rubber-stamp on every bench trial guilty verdict we address.” People v. Hernandez,
312 Ill. App. 3d 1032, 1037 (2000).
¶ 23 In the present case, to prove defendant guilty of misdemeanor disorderly conduct as
charged, the State was required to prove that the defendant knowingly did 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 2022); see also People v. McLennon, 2011 IL App (2d) 091299, ¶ 29.
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Therefore, the State had to prove that defendant knowingly engaged in conduct that (1) was
unreasonable; (2) alarmed or disturbed another; and (3) provoked a breach of the peace. Id. The
person charged with disorderly conduct must have been consciously aware that his or her conduct
was practically certain to cause a particular result. See 720 ILCS 5/4-5(b) (West 2022) (defining
“knowingly.”).
¶ 24 “Disorderly conduct is loosely defined.” People v. Steger, 2018 IL App (2d) 151197 ¶
30. “As a highly fact-specific inquiry, it ‘embraces a wide variety of conduct serving to destroy or
menace the public order and tranquility.’ ” McLennon, 2011 IL App (2d) 091299, ¶ 30 (quoting In
re B.C., 176 Ill. 2d 536, 552 (1997)). The purpose of the disorderly-conduct statute is to protect
against “ ‘an invasion of the right of others not to be molested or harassed, either mentally or
physically, without justification.’ ” People v. Davis, 82 Ill. 2d 534, 538 (1980) (quoting Ill. Ann.
Stat., ch. 38, ¶ 26-1, Committee Comments-1961, at 149 (Smith-Hurd 1977)). Accordingly, the
activity that can constitute disorderly conduct:
“is so varied and contingent upon surrounding circumstances as to almost defy definition.
Some of the general classes of conduct which have traditionally been regarded as disorderly
are here listed as examples: the creation or maintenance of loud and raucous noises of all
sorts; unseemly, boisterous, or foolish behavior induced by drunkenness ***. In addition,
the task of defining disorderly conduct is further complicated by the fact that the type of
conduct alone is not determinative, but rather culpability is equally dependent upon the
surrounding circumstances. *** [S]houting, waving, and drinking beer may be permissible
at the ball park, but not at a funeral.” 720 ILCS Ann 5/26-1, Committee Comments-1961,
at 200 (Smith-Hurd).
¶ 25 “Generally, to breach the peace, a defendant’s conduct must threaten another or have an
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effect on the surrounding crowd.” McLennon, 2011 IL App (2d) 091299, ¶ 31. “However, a breach
of the peace can occur without overt threats or profane and abusive language.” Id. In addition, it
“need not occur in public.” Id.; see also Davis, 82 Ill. 2d at 538 (“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.”). Ultimately, a 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 (1983). In Bradshaw,
the court held that the conduct did not breach the peace because it had no effect on the surrounding
crowd, and no one was threatened. Id. The court explained, “that defendant’s conduct was nothing
more than annoying is indicated by the lack of evidence that anyone left the tavern as a result of
defendant’s conduct.” Id.¶ 26 Reasonableness is also determined by the defendant’s conduct in relation to the
surrounding circumstances. McLennon, 2011 IL App (2d) 091299, ¶ 32 (citing People v. Albert,
243 Ill. App. 3d 23, 27 (1993)). “While this is an objective standard, the reasonableness of a
defendant’s conduct is necessarily tied to the facts and circumstances of the situation in which he
is placed.” Id.¶ 27 Even viewed in the light most favorable to the State, we conclude that the evidence
presented in this case was insufficient to prove that defendant’s conduct “threatened another or
[had] an effect on the surrounding crowd.” McLennon, 2011 IL App (2d) 091299, ¶ 31.
¶ 28 The evidence established that while sitting alone at a computer in the public library
listening to music on headphones, defendant made eye contact with M.H. and motioned her over
with his hands. After briefly approaching the corner of defendant’s table, M.H. walked away and
sat down with B.H. Defendant walked over uninvited and sat down with the girls. He began asking
them to listen to his music, an offer they refused “five or six times.” Defendant then asked whether
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No. 1-23-0497
they lived in the area and needed a ride home. According to defendant, he was trying to be helpful.
M.H. and B.H. repeatedly told defendant that they did not want a ride home, but he kept asking
them the same question. B.H. finally stood up and yelled at defendant to get away from them.
Defendant got up and walked away. He eventually collected his things and left the library.
¶ 29 While arguably awkward, annoying, and “inappropriate,” asking M.H. and B.H. where
they lived and offering to drive them home was not objectively harassing or threatening. As
depicted in the surveillance video, the entire interaction, from the time M.H. approached
defendant’s computer until the time defendant left the table, lasted less than two minutes.
Defendant was only at the table with M.H. and B.H. for about 52 seconds before B.H. yelled at
him “to get the f*** away from us” and he “back[ed] up, and *** continued to go back to his seat.”
We take issue with our dissenting colleague’s characterization of our citations to direct testimony
and video footage as “rationaliz[ations].” Infra ¶ 48.
¶ 30 Defendant’s behavior in this case is distinguishable from conduct that Illinois courts have
found sufficient to support charges of disorderly conduct. See, e.g., People v. Singer, 2021 IL App
(2d) 200314, ¶¶ 3, 52 (the defendant—a youth pastor—sent text messages to a minor concerning
“ ‘jerking off’ and having an overnight”); People v. Fretch, 2017 IL App (2d) 151107, ¶¶ 96-97
(the defendant stood at his front door, exposed his penis, and masturbated while waiving at a minor
child walking by “so that his nakedness and act of masturbation were visible to her and,
necessarily, to other passersby”); People v. McLennon, 2011 IL App (2d) 091299, ¶ 3, (while
receiving treatment at a hospital, the defendant became agitated and began screaming and swinging
at hospital staff and damaged an EKG machine); People v. Allen, 288 Ill. App. 3d 502, 504-05,
508 (1997) (the defendant made numerous statements of a sexual nature to minor boys and
threatened to “ ‘start rumors’ that they were ‘queer,’ ” constituting “threats to destroy a
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No. 1-23-0497
reputation”). The facts of this case are quite different. Defendant sat down in a public library with
two teenagers, asked them to listen to his music, and repeatedly offered to drive them home. He
spoke to the girls in a tone that was appropriate for talking in a library, bothered them for less than
two minutes and “backed away” when ordered to do so by B.H. Under the totality of these
circumstances, defendant’s behavior did not constitute a threat, harassment or rise to the level of
disorderly conduct.
¶ 31 In determining whether a defendant’s actions provoked a breach of the peace, reviewing
courts look to the context of the situation, including the history between the defendant and victim.
In People v. Steger, 2018 IL App (2d) 151197, the defendant and the mother of his child, as well
as her new husband, had a “history of tension” and conflict. Id. ¶ 33. When the defendant was
released on charges stemming from one of those conflicts, he walked several miles and stopped
“out of all places” outside the home of the victim and her husband “for two to five minutes.” Id.
The victim testified that the defendant’s behavior “freaked her out” and another witness observed
that “she was visibly shaken and distraught.” Id. In affirming the defendant’s conviction for
disorderly conduct, the reviewing court found that the defendant’s actions could reasonably be
perceived as meant to provoke or upset the victim and her husband, and the jury could have
reasonably concluded that the defendant’s behavior was threatening to them. Id.
¶ 32 In People v. Pence, 2018 IL App (2d) 151102, the defendant was charged with disorderly
conduct when he “used Facebook to contact a minor child *** and send [her] the message ‘Hey.
Long time no talk. How have you been?” Id. ¶ 3. In affirming the trial court’s finding that the
defendant knowingly provoked a breach of the peace, the reviewing court agreed that “context was
particularly relevant.” Id. ¶ 18. The court noted that the defendant and the minor child “had a
history involving text messaging, which was inappropriately sexual and included requests that
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[she] send him sexual pictures. They met in person and defendant eventually was convicted of
traveling to meet a minor and grooming.” Id. Given their history, the minor child was
understandably scared when the defendant contacted her again, her mother was worried about her
child’s safety, and a detective confirmed that when he met with the minor child, “she was
extremely upset and concerned.” Id. The reviewing court held that “defendant’s attempt to
reconnect with his victim” was unreasonable, threatening, and an invasion of the right of the minor
and her mother “to not be mentally harassed.” Id.¶ 33 In other cases, reviewing courts have focused on the explicit or implied threats made by
the defendant. In People v. Swenson, 2020 IL 124688, the reviewing court affirmed the defendant’s
conviction where the defendant called a school administrator to ask about enrolling his son, and
then discussed the killing of children, the success rate of school shooters, the school’s active
shooter protocol, whether the teachers were prepared to have a gun in their face, police response
time, and the woods surrounding campus. Id. ¶¶ 6-7. The entire school was placed on “soft lock
down” and someone called 911. Id. ¶ 8. Our supreme court found that the defendant’s questions
and statements “directly resulted in a breach of the peace by way of a school lockdown and police
response.” Id.¶ 40. See also People v. Albert, 243 Ill. App. 3d 23, 26 (1993) (finding that the
defendant’s yelling outside a home at 2:00 a.m. rose to the level of disorderly conduct because it
disturbed the neighborhood residents’ reasonable expectation of peace and quiet); People v. Ellis,
141 Ill. App. 3d 632, 633 (1986) (affirming the defendant’s conviction for disorderly conduct
where the defendant tore down Christmas decorations from a store’s awning posts in from of store
owners, who were in the store, because they “would alarm or scare any reasonable person in the
proximity of defendant.”). In contrast, defendant’s behavior in this case did not involve any explicit
or implicit threats, no preexisting history existed between the parties and the peace of the other
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library patrons was not unreasonably disturbed.
¶ 34 Cases in which Illinois courts have found no breach of the peace are instructive in
reviewing defendant’s conduct in the instant case. For example, in People v. Trester, 96 Ill. App.
3d 553 (1981), the defendant, in “a normal speaking voice,” swore at a police officer and told him
that if he took off his gun and badge, the defendant would punch him in the nose, and they would
fight. Id. at 554. The reviewing court held that no breach of the peace occurred because the
defendant’s words could not be construed as an immediate threat. Id. at 556. In City of Chicago v.
Murray, 333 Ill. App. 233 (1947), the defendant, a married woman, was charged with disorderly
conduct for having sex with her paramour in a hotel room, resulting in her husband entering the
hotel room and shooting the paramour. Id. at 237. The court recognized that “however
reprehensible defendant’s conduct may have been, *** we do not think it justified a finding that
she was guilty of ‘disorderly conduct’ or of a ‘diversion tending to a breach of the peace.’ Only
the parties immediately concerned were disturbed thereby.” Id. See also, City of Chicago v. Mateja,
57 Ill. App. 3d 144, 146 (1978) (“Although the evidence adduced at trial was conflicting as to
whether defendant’s conduct caused a crowd to gather, there was no showing that his behavior led
to any disturbance or disorder. Since it cannot be determined from the record whether defendant’s
conduct had any effect whatsoever on surrounding bystanders, we cannot find that his conduct was
such that tended to cause disorder or breach the public peace and quiet.”); People v. Johnson, 15
Ill. App. 3d 741, 745 (1973) (Defendant was present in a vacant apartment drinking with two other
men. Prior to approaching, an officer had a conversation with a tenant indicating that he was
“disturbed” by the defendant’s loud voice. Defendant was charged with disorderly conduct based
on this disturbance. The reviewing court found that “it was pure conjecture” that the defendant’s
actions caused a breach of the peace.).
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¶ 35 The dissent mistakenly relies on People v. Douglas, 29 Ill. App. 3d 738, 745 (1975) in
suggesting that “[w]here there is testimony that the defendant’s conduct had an impact on the
surrounding crowd there is sufficient evidence for a finding of a breach of the peace.” (Emphasis
added.) Infra ¶ 53. On the contrary, the Douglas court recognized that “[v]ulgar language, however
distasteful or offensive to one’s sensibilities, does not evolve into a crime because people nearby
stop, look, and listen *** the record does not even contain any evidence permitting an inference
of a disturbing effect upon the bystanders through defendant’s conduct.” Douglas, 29 Ill. App. 3d
at 743-44.
¶ 36 Similarly, defendant’s conduct in the instant case, however distasteful, did not relieve the
State of its burden of proving a breach of the peace beyond a reasonable doubt, as required by the
statute. 720 ILCS 5/26-1(a). While we are not suggesting that it is ever appropriate for a stranger,
particularly an adult male, to initiate a discussion with 14-year-old girls in a library and offer to
drive them home (or anywhere else for that matter), the State failed to prove that defendant’s
conduct in this case breached the peace. M.H. and B.H. were justifiably “uncomfortable,” a “little
irritated,” and “mostly scared” by defendant’s behavior. However, B.H. candidly confirmed that
after she loudly yelled at defendant to leave their table, there was little reaction from the other
people in the library. Therefore, “only the parties immediately concerned were disturbed” by
defendant’s behavior. Murray, 233 Ill. App. at 237.
¶ 37 Accordingly, because the evidence is insufficient to satisfy the State’s burden of proof
beyond a reasonable doubt, we must reverse defendant’s conviction outright. See People v. Brown,
2013 IL 114196, ¶¶ 52-53. In light of our determination, we need not consider defendant’s
remaining contention.
¶ 38 CONCLUSION
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¶ 39 For these reasons, we reverse the judgment of the circuit court.
¶ 40 Reversed.
¶ 41 JUSTICE PUCINSKI, specially concurring:
¶ 42 I agree with the author that the State did not prove breach of the peace. While I think the
defendant’s actions were undeniably creepy, that is not an element of disorderly conduct. If the
State wanted to prosecute this defendant it should have found a more appropriate charge.
¶ 43 PRESIDING JUSTICE FITZGERALD SMITH, dissenting:
¶ 44 I respectfully dissent. In overturning the defendant’s conviction, the majority ignores the
long-standing principle that in reviewing the sufficiency of the evidence, we, as the appellate court,
may not substitute our judgement for that of the trier of fact. People v. Brown, 2013 IL 114196,
¶ 48. In fact, our review is limited to determining whether, after viewing the evidence in the light
most favorable to the State, any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt. See People v. Jones, 2023 IL 127810, ¶ 28; Brown, 2013 IL
114196, ¶ 48; People v. Cunningham, 212 Ill. 2d 274, 280 (2004). Under the facts of this case, I
believe that a rational trier of fact could.
¶ 45 To prove the defendant guilty of misdemeanor disorderly conduct, the State was required
to prove that the defendant knowingly performed 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 2022);
see also People v. Pence, 2018 IL App (2d) 151102, ¶ 15; People v. McLennon, 2011 IL App (2d)
091299, ¶ 29.
¶ 46 As the majority correctly notes disorderly conduct is deliberately “loosely defined.” People
v. Steger, 2018 IL App (2d) 151197 ¶ 30. The intent of the statute is to protect “against a wide
variety of conduct serving to destroy or menace the public order and tranquility.” McLennon, 2011
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IL App (2d) 091299, ¶ 30 (quoting In re B.C., 176 Ill. 2d 536, 552 (1997)). Accordingly, the types
of conduct included within the scope of the offense “ ‘almost defy definition.’ ” Id. at 537(quoting 720 ILCS Ann. 5/26-1, Committee Comments-1961, at 200 (Smith-Hurd 2010));
“Culpability *** revolves not only around the type of conduct but is equally dependent upon the
surrounding circumstances.” People v. Davis, 82 Ill. 2d 534, 537 (1980).
¶ 47 The defendant’s conduct here was largely undisputed. After unsuccessfully attempting to
engage one of the 14-year-old victims in a conversation and watching her quickly walk away and
sit at a table with her friend, the adult defendant stood up from his computer and followed the
victim to her table. Uninvited, the defendant then sat down at the table and insisted that both girls
listen to his music. He then repeatedly asked them where they lived and whether he could give
them a ride home. Even though the girls repeatedly refused, telling him “No” between “15 to 16
times,” and asked him to leave, the defendant remained at their table, “leaning” towards them, and
pleading with them in “like [sic] a very low tone as if you’re talking to someone very close face-
to-face” until one of them was forced to raise her voice, and yell at him to go away. Only then did
the defendant “back off” and leave their table, subsequently exiting the library.
¶ 48 The majority apparently concedes that the defendant acted knowingly and that his conduct
alarmed and disturbed the two young victims. It nonetheless finds that the conduct was neither
unreasonable nor breached the peace. The majority rationalizes that while “awkward, annoying,
and inappropriate,” the defendant’s conduct did not rise to the level of disorderly conduct because
it was not prolonged or objectively threatening and did not produce any substantial reaction from
the remaining library patrons. I respectfully disagree.
¶ 49 Contrary to the majority’s holding, viewing, as we must, the evidence offered at trial in the
light most favorable to the State, I believe that a rational trier of fact could have found the
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defendant’s conduct to be unreasonable. “Reasonableness” is “determined by the defendant’s
conduct in relation to the surrounding circumstances.” McLennon, 2011 IL App (2d) 091299, ¶ 32
(citing People v. Albert, 243 Ill. App. 3d 23, 27 (1993)) “While this is an objective standard, the
reasonableness of a defendant’s conduct is necessarily tied to the facts and circumstances of the
situation in which he is placed,” such that his age, the age of the victims, and his understanding of
his own conduct, are relevant in determining the reasonableness of his actions. Id.¶ 50 Here, the adult defendant admitted to approaching two young unchaperoned girls, after
the first one rebuffed his invitation to listen to his music, and to sitting at their table uninvited. He
further admitted that he repeatedly asked them where they lived and whether he could take them
home and despite their refusals, did not leave their table until one of them had an “outburst” and
screamed at him “to leave her younger sister alone.” When asked by the circuit court whether he
found “anything problematic” about a grown man approaching two young girls sitting in the library
by themselves and asking them if they wanted a ride home, the defendant responded in the
affirmative, and then admitted that his conduct was “[v]ery problematic.” Under these particular
facts and taking into account the defendant’s own admission to the impropriety of his behavior, a
rational trier of fact could have found that the defendant acted in an objectively unreasonable
manner, so as to satisfy the reasonableness element of the disorderly conduct offense. See People
v. Raby, 40 Ill. 2d 392, 397 (1968) (quoting Ill. Ann. Stat. ch. 38, par. 26-1, Committee Comments
-1961 (Smith-Hurd)) (“ ‘The gist of [the disorderly conduct] offense is not so much that a certain
overt type of behavior was accomplished, as *** that the offender knowingly engaged in some
activity in an unreasonable manner which he knew or should have known would tend to disturb,
alarm or provoke others. The emphasis is on the unreasonableness of the conduct and its tendency
to disturb.’ ”).
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¶ 51 The majority attempts to downplay the defendant’s conduct, pointing out that his entire
encounter with the two girls lasted less than two minutes and that because he was in a public library
his choice of seat at their table and his brief attempts at offering them a ride home were harmless.
The majority further points out that the defendant left as soon as B.H. asked him to leave. Contrary
to the majority’s position, however, both minors testified that during their interaction with the
defendant, they repeatedly asked the defendant to leave, which he ignored, instead persisting with
questions that made them feel “uncomfortable” and “frightened,” until B.H. was forced to stand
up, and yell at him to get away. The surveillance footage from the library further supports the
victim’s testimony. It clearly shows the defendant sitting down at the girls’ table, speaking with
them, then standing up and leaving it for a few seconds before changing his mind and sitting back
down again. The defendant then leaves a second time, looking flustered, presumably only after
B.H. is forced to scream at him to leave them alone. Moreover, the video shows that the
defendant’s choice of the victims’ table was neither random nor innocuous. Instead, it reveals the
defendant following M.H., even after she had rebuffed his attempts at conversation and quickly
walked away to distance herself and sit at the table with her friend. Disorderly conduct is aimed at
protecting people from exactly this situation, i.e., being “ ‘molested or harassed, either mentally
or physically, without justification.’ ” Steger, 2018 IL App (2d) 151197, ¶ 20; see also Davis, 82
Ill. 2d at 538 (quoting Ill. Ann. Stat., ch. 38, ¶ 26-1, Committee Comments-1961, at 149 (Smith-
Hurd 1977)).
¶ 52 Similarly, contrary to the majority’s position, viewing the evidence offered at trial in the
light most favorable to the State, a rational trier of fact could have found that the defendant’s
conduct caused a breach of the peace. “To breach the peace, a defendant’s conduct must threaten
another or have an effect on the surrounding crowd.” (Emphasis added.) McLennon, 2011 IL App
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(2d) 091299, ¶ 3. Here there was sufficient evidence for a rational trier of fact to find both.
¶ 53 The defendant’s stalking behavior did not go unnoticed by the remaining library patrons.
When asked if anyone else reacted to her outburst, B.H. responded in the affirmative, stating, “I
seen [sic] my peers around me react.” She then noted that several people in the library “looked up”
before going back to what they were doing, and that one woman even approached to ask the girls
what had happened and whether the defendant had been bothering them. The video surveillance
footage corroborates this claim and reveals several patrons turning around or looking up from their
computers to watch the girls. In addition, it depicts a woman getting up and interacting with M.H.
and B.H. after they return to their table from the librarian’s office. Where there is evidence
regarding the effect that the defendant’s conduct had on the surrounding crowd there is sufficient
evidence for a finding of a breach of the peace. See McLennon, 2011 IL App (2d) 091299, ¶ 3 (the
defendant’s conduct breaches the peace when it has “an effect on the surrounding crowd.”).
¶ 54 The majority’s reliance on City of Chicago v. Mateja, 57 Ill. App. 3d 144, 146 (1978) and
People v. Johnson, 15 Ill. App. 3d 741, 745 (1973), for the proposition that any such effect on the
surrounding crowd mut be of greater magnitude than the one described here, is unavailing. In
reversing the defendant’s conviction in Mateja, the court held that despite conflicting accounts as
to whether a crowd had formed near the doorway of a school where a former student was standing
and yelling profanities at a teacher, “[i]t [could] not be determined from the record whether
defendant’s conduct had any effect whatsoever on [the] surrounding bystanders.” Mateja, 57 Ill.
App. 3d at 146. Similarly, in Johnson, the court held that where a police officer testified to having
a conversation with a tenant before investigating allegations that prowlers were inside a vacant
upstairs apartment, without any testimony as to what that tenant told the officer, a finding that the
tenant was disturbed, and that this disturbance constituted a breach of the peace was “pure
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No. 1-23-0497
conjecture.” Id. at 745. Unlike Mateja and Johnson, where there was no testimony offered
regarding the impact of the defendant’s conduct on anyone in particular, here B.H.’s undisputed
testimony and the library’s surveillance video footage clearly established that the defendant’s
conduct had an impact on several surrounding bystanders. B.H. testified and the surveillance video
confirmed that several library patrons reacted to the defendant’s conduct by “looking up” from
what they were doing, and that one woman even approached the girls to check on their well-being
and inquire whether the defendant had been bothering them.
¶ 55 Moreover, regardless of the sufficiency of the evidence regarding the effect of the
defendant’s conduct on the “surrounding crowd,” a rational trier of fact could have found a breach
of the peace, based solely on the threatening nature of the defendant’s conduct. See McLennon,
2011 IL App (2d) 091299, ¶ 3. When a breach of the peace is established through threats, the
context matters. McLennon, 2011 IL App (2d) 091299, ¶ 3. Threats need not be explicit, nor
profane and abusive language used, and the conduct need not be performed in public. See Davis,
82 Ill. 2d at 538 (“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.”). “The breach-of-the peace element
requires nothing more than the unreasonable harassment of a single person, even in a nonpublic
location.” Maniscalco v. Simon, 712 F.3d 1139, 1144 (7th Cir. 2013).
¶ 56 Here, both minors testified that they were frightened by the defendant’s conduct.
Specifically, M.H. stated that the defendant’s offers to give them a ride home made her feel
“uncomfortable,” because he was “a stranger” and “didn’t need to know where I live.” Similarly,
B.H. averred that she felt tense, irritated, and scared because she was “caught off guard” with the
defendant sitting down uninvited at their table and asking them inappropriate questions in “a very
low tone.” B.H. was also frightened because she could see that her refusals of the defendant’s
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No. 1-23-0497
offers were beginning to frustrate him, and she did not know how he would react. Finally, both
victims testified that as soon as the defendant left, B.H. sought out the librarian and reported the
defendant’s conduct to both library security and the police.
¶ 57 Given the context of the victims’ young age, and the fact that they were sitting
unchaperoned in a presumably child-safe space, such as a public library, a rational trier of fact
could have inferred that the defendant’s uninvited approach, his repeated and apparently
conspiratorial “low-voice” inquiries into where they lived, and whether he could drive them home,
despite their refusals and their requests that he leave, were reasonably perceived by the minors as
a threat. Indeed, the minors testified that they were scared enough to have B.H. immediately report
the defendant’s conduct to the librarian and request to speak both to library security and the police.
Moreover, the defendant’s own concession to the circuit court that his conduct was “very
problematic” reveals that he himself knew, or in the very least, should have known, that his
questions to the two girls could have been construed as threatening.
¶ 58 The lack of pre-existing history between the defendant and the victims, in no way
diminishes, let alone categorically negates, the nature of the defendant’s implied threat. As the
majority itself reluctantly admits, there can be no doubt that the two unchaperoned minor victims
had an objectively reasonable expectation not to be followed and harassed by an unfamiliar adult
inside a public library. See Davis, 82 Ill. 2d at 538 (holding that “the defendant breached the peace
of the complainant and her granddaughter-in-law by unreasonably invading their right not to be
harassed” by waiving papers at them and “compel[ing them] to hear [his] indirect threat.”)
¶ 59 Accordingly, under this record, there was sufficient evidence for the circuit court to find a
breach of the peace. See Steger, 2018 IL App (2d) 151197, ¶ 33 (holding that the defendant’s act
of standing quietly outside of his ex-wife’s home, which “freaked [her] out” because of prior
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No. 1-23-0497
altercations between the victim’s new husband and the defendant constituted a sufficient threat));
Pence, 2018 IL App (2d) 151102, ¶ 18 (holding that an adult defendant’s innocuous message to a
minor on Facebook, stating: “Hey. Long time no talk. How have you been?” was sufficiently
threatening in itself to constitute a breach of the peace because the victim had a prior history with
the defendant and testified that the message frightened her); Allen, 288 Ill App. 3d at 504, 508
(holding that the adult defendant’s “unwelcome and offensive sexual remarks” to two minors, even
though not “fighting words” were sufficiently threatening); Davis, 82 Ill. 2d at 537-38 (finding
that the defendant’s conduct in waving papers at an elderly woman, who had previously sworn out
a complaint against the defendant’s brother, inside her home, saying “ ‘If [my brother goes to jail,
Miss Pearl, you know me’ ” was sufficiently threatening); In re D.W., 150 Ill. App. 3d 729, 730-
31 (1986) (finding a breach of the peace, where the threat was no imminent, and a minor told a
classmate that if he did not pay $5 by lunch time, he would “kick [his] butt”); People v. Ellis, 141
Ill. App. 3d 632, 633 (1986) (holding that the defendant’s conduct in tearing down Christmas
decorations from a store’s awning posts, while the store owners were watching from inside, was
sufficiently threatening, because it would “alarm or scare” a “reasonable person” in his proximity);
see also People v. Grzybowski, 2011 WL 10099625, No. 02-09-0587 (Feb. 11, 2011) (unpublished
order pursuant to Illinois Supreme Court Rule 23) (holding that a defendant throwing nails and
hardware on his own lawn, and subsequently yelling at a neighbor for filming his bizarre conduct
was sufficiently threatening to constitute a breach of the peace); People v. Pritchard, 2020 IL App
(2d) 170354-U, ¶¶ 22-25 (holding that regardless of any impact the defendant’s conduct had on
the surrounding Goodwill shoppers, the defendant’s act of angrily challenging the price of a tent,
which he brought to the cash-register without a price tag, and stating that he was “going to come”
after the store manager” just “like you were coming at me,” which the store manager testified made
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him feel “nervous” was sufficiently threatening as it invaded the store manger’s “right not to be
harassed”).
¶ 60 In reversing the defendant’s conviction, the majority cites numerous decisions that have
affirmed disorderly conduct convictions. In an apparent attempt to justify its holding, the majority
relies on the egregiousness of the defendants’ behavior in those cases, to find that compared to
them, the defendant’s actions here were merely “ill-advised” and “inappropriate” but nonetheless
harmless. This, however, is a red herring, as the reason behind the affirmances in those cases is
the deferential standard of review, we, as the appellate court, must apply when reviewing the
sufficiency of the evidence to sustain a conviction.
¶ 61 Not unexpectedly, the majority can only cite very dated decisions that have reversed
disorderly conduct convictions. Our society’s sensibilities have drastically changed since those
decisions to a point where we no longer diminish young female victims’ accounts of harassment
and discomfort. After being accosted by the defendant, the two unchaperoned minors here had the
wherewithal and courage to find the librarian and request the help of the police, which clearly
demonstrates that they found the defendant’s conduct to be far more than merely “awkward,”
“distasteful” or “creepy.”
¶ 62 Moreover, the decisions cited by the majority are easily distinguishable from the present
circumstances .In People v. Trester, 96 Ill. App. 3d 553 (1981), the defendant was convicted of
disorderly conduct after, in a normal tone of voice, he swore at a police officer and told him that
if he took off his gun and badge, he would punch him in the nose, and they would fight. Id. at 544.
In reversing the defendant’s conviction, the appellate court held that the defendant’s words, which
were couched as a condition, could not be construed as an immediate threat because “[a]n officer
of the law must exercise the greatest degree of restraint in dealing with the public. He must not
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conceive that every threatening or insulting word, gesture, or motion amounts to disorderly
conduct.” Id. at 545.
¶ 63 Since then, we have repeatedly “called into doubt” Trester’s holding that conditional words
cannot be construed as immediate threats. See Pence, 2018 IL App (2d) 151102, ¶ 19; In re D.W.,
150 Ill. App. 3d at 732. As we explained in Pence, Trester “did not consider [our supreme court’s
holding in] Davis, [82 Ill. 2d at 537-38], which found that an indirect threat was sufficient to
support a conviction of disorderly conduct.” Pence, 2018 IL App (2d) 151102, ¶ 19; see also In re
D.W., 150 Ill. App. 3d at 732 (noting that Trester was of questionable validity because it cited the
appellate court’s decision in Davis and made no reference to the supreme court’s subsequent
decision).
¶ 64 In any event, Trester is readily distinguishable, given that the victim in that case was a
police officer, trained in handling difficult encounters with the public. Here, as noted above, the
victims were unchaperoned 14-year-old girls, who had a reasonable expectation that they would
be safe from harassment in the public library.
¶ 65 City of Chicago v. Murry, 333 Ill. App. 233 (1947) is similarly inapposite. In that case, the
defendant, a married woman, was convicted under a city ordinance with disorderly conduct for
having sex with her paramour in a hotel room. Id. at 237. When her husband entered the room and
observed the sexual act, he shot the paramour. Id. The appellate court reversed the defendant’s
conviction noting that although her conduct was contrary to public morals, it did not tend to create
a breach of the peace because “[o]nly the parties immediately concerned were disturbed thereby.”
Id. at 237.
¶ 66 Unlike Murray, here the defendant’s conduct did not occur in a private motel room, nor
between him, his wife, and her paramour, such that only the “immediate concerned parties were
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disturbed.” Id. Rather, the defendant followed and then accosted two young girls he had never met
before in a public library in front of at least 10 or 15 other library patrons. As already noted above,
those patrons were not indifferent to the defendant’s behavior, and raised their heads to look in the
direction of the defendant after one of the girls was forced to raise her voice to get him to leave
them alone. A female patron subsequently even approached the girls to check on their well-being.
Under this record, I cannot see how the majority can believe that the defendant’s behavior in the
instant case resembles anything close to what transpired in Murray.
¶ 67 For all of the aforementioned reasons, I believe that applying the proper standard of review,
and viewing the evidence in the light most favorable to the State, a rational trier of fact could have
found the evidence sufficient to convict the defendant. Brown, 2013 IL 114196, ¶ 48; see also
People v. Jackson, 232 Ill. 2d 246, 281 (2009). Because, as the appellate court, we are not permitted
to question the trier of fact’s credibility determinations, findings of fact, or any inferences that the
trier of fact has drawn from those facts, I would affirm the defendant’s conviction. See Jackson,
232 Ill. 2d at 281.
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