DocketNumber： 3-96-0152
Filed Date： 9/20/1996
Status： Precedential
Modified Date： 10/22/2015
No. 3--96--0152
_________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 1996
PEOPLE OF THE STATE OF ) Appeal from the Circuit Court of
ILLINOIS, ) the 9th Judicial Circuit,
) McDonough County, Illinois
Plaintiff-Appellant, )
)
v. ) No. 95--CM--594
)
PATRICIA FOXALL, ) Honorable
) John R. Clerkin,
Defendant-Appellee. ) Judge Presiding
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JUSTICE MICHELA delivered the opinion of the court:
_________________________________________________________________
The State appeals the dismissal of an information it filed
against the defendant, Patricia Foxall, charging her with
disorderly conduct in violation of section 26--1(a)(7) of the
Criminal Code of 1961 (the Code). 720 ILCS 5/26--1(a)(7) (West
1994). The issue presented for our review is whether a charging
instrument which accuses one of committing disorderly conduct by
knowingly transmitting a false report to Illinois' Department of
Children and Family Services (DCFS) under Section 4 of the Abused
and Neglected Child Reporting Act (325 ILCS 5/4 (West 1994)) is
legally sufficient when it fails to set forth the allegedly false
report. For the reasons set forth below, we hold that such a
charging instrument is legally insufficient and affirm the ruling
of the circuit court of McDonough County.
Foxall, a school aide who is legally mandated through her
professional capacity to report reasonably suspected instances of
child abuse or neglect to DCFS (325 ILCS 5/4 (West 1994)), reported
information regarding an alleged perpetrator of such abuse or
neglect, Rhonda Reed. A DCFS investigation ensued and the report
against Reed was determined to be "unfounded." See 325 ILCS 5/7.12
(West 1994); 325 ILCS 5/7.14 (West 1994). On February 6, 1995, a
criminal information was filed against Foxall alleging that she
committed an act of disorderly conduct by knowingly transmitting a
false report to DCFS. Foxall filed a pretrial motion to dismiss
the information for its failure to charge an offense under section
111--3 of the Code of Criminal Procedure of 1963. 725 ILCS 5/111--
3 (West 1994). The trial court agreed and dismissed the
information without prejudice.
On September 27, 1995, the State filed a second information
against Foxall which is reproduced below:
"on or about the 29th day of September, in the
year of our Lord one thousand and nine hundred
and ninety-four, at and within the said County
of McDonough in the State of Illinois,
[Patricia Foxall] knowingly transmitted a
false report to the Department of Children and
Family Services under Section 4 of the Abused
and Neglected Child Reporting Act, in that
said defendant reported that Rhonda Reed had
committed acts of sexual misconduct, and did
then and there, thereby commit the offense of
DISORDERLY CONDUCT, in violation of Chapter
720, Section 5/26-1(a)(7) of the Illinois
Revised Statute, (sic) contrary to the form of
the statute in such case made and provided and
against the peace and dignity of the same
people of the State of Illinois."
Foxall again filed a pretrial motion to dismiss the information.
The trial court ruled that the information lacked the specificity
and particularity required under Illinois law and dismissed the
information without prejudice. The State timely appeals arguing
that its inclusion of Reed's name coupled with its statement that
the report concerned alleged acts of sexual misconduct committed by
Reed renders the information legally sufficient.
An information which "'apprise[s] the accused of the precise
offense charged with sufficient specificity to prepare his defense
and allow pleading a resulting conviction as a bar to a future
prosecution arising out of the same conduct'" will survive a
challenge to its legal sufficiency made for the first time on
appeal. People v. Thingvold, 145 Ill. 2d 441, 448, 584 N.E.2d 89,
91 (1991), quoting People v. Gilmore, 63 Ill. 2d 23, 29, 344 N.E.2d
456 (1976). If, however, an accused moves to dismiss the
information before trial, as in the instant case, the information
must strictly comply with the pleading requirements of section 111-
-3 of the Code of Criminal Procedure of 1963. Thingvold, 145 Ill.
2d at 448, 584 N.E.2d at 91-2; 725 ILCS 5/111--3 (West 1994). We
review the trial court's decision to dismiss the information de
novo. People v. Smith, 259 Ill. App. 3d 492, 495, 631 N.E.2d 738,
740 (1994).
Statutory language may, by its words alone, sufficiently
apprise an accused of the charged criminal offense. People v.
Grieco, 44 Ill. 2d 407, 409-10, 255 N.E.2d 897, 899 (1970).
Conversely, there are certain offenses where the statutory language
does not sufficiently particularize the offense, requiring the
State to plead additional specific facts. See People v. Heard, 47
Ill. 2d 501, 266 N.E.2d 340 (1970). The State argues, however,
that section 26--1(a)(7) of the Code does not suffer from this
fault and reasons that because this statutory language describes
specific conduct there is no need for the information to specify
the exact means by which the conduct was carried out. People v.
Wisslead, 108 Ill. 2d 389, 397, 484 N.E.2d 1081, 1084 (1985); 720
ILCS 5/26--1(a)(7) (West 1994). We disagree.
Section 26--1(a)(7) of the Code states:
"[a] person commits disorderly conduct when he
knowingly transmits a false report to the
Department of Children and Family Services
under Section 4 of the Abused and Neglected
Child Reporting Act[.]" 720 ILCS 5/26--
1(a)(7) (West 1994).
Although section 26--1(a)(7) of the Code uses language which is
specific in comparison to its companion statutory subsections (see
725 ILCS 5/26--1(a)(1) (West 1994)), the gravamen of the offense is
the "false report." Thus, the charging instrument must perforce
plead the allegedly false report Foxall made to DCFS to satisfy the
constitutional requirement that an accused be informed of the
"nature and cause" of the charged criminal offense. U.S. Const.,
amend. VI; Ill. Const. 1970, art. I, § 8; Wisslead, 108 Ill. 2d at
394, 484 N.E.2d at 1082; accord People v. Aud, 52 Ill. 2d 368, 370-
71, 288 N.E.2d 453, 454 (1972).
The State argues that because the information charged that
Foxall knowingly made a false report regarding Reed's alleged acts
of sexual misconduct, Foxall is apprised of not only the elements
of the offense, but its nature as well. Again, we disagree.
Sexual misconduct can encompass a myriad of acts just as a myriad
of acts can constitute gambling (725 ILCS 5/28--1 et seq. (West
1994)) or a myriad of acts can constitute obscenity (725 ILCS 5/11-
-20 et seq. (West 1994)). Here, the information charged that
Foxall transmitted a false report concerning "sexual misconduct"
evoking nothing more than an uncertain laundry list of possible
acts which does not cure the defect caused by omitting the false
report from the body of the information.
One can only commit this type of disorderly conduct through
the knowing transmission of a false oral or written report. 720
ILCS 5/26--1(a)(7) (West 1994). Thus, basic fairness demands that
Foxall be told exactly what she allegedly transmitted as a false
report to DCFS. People v. Davis, No. 1-95-0486, slip op. at 11
(Ill. App. Ct. 1st Div. June 28, 1996). We therefore hold that,
upon a de novo review of the record, the information does not
strictly comply with section 111--3 of the Code of Criminal
Procedure of 1963 (725 ILCS 5/111--3 (West 1994)) and it does not
sufficiently apprise the accused of the offense so that she can
prepare a competent defense and plead a judgment as a bar to a
future prosecution.
For the foregoing reasons, the judgment of the circuit court
of McDonough County is affirmed.
Affirmed.
HOLDRIDGE, P.J. and LYTTON, J., concur.