People v. Oduwole , 985 N.E.2d 316 ( 2013 )

ILLINOIS OFFICIAL REPORTS
Appellate Court
People v. Oduwole, 2013 IL App (5th) 120039Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption OLUTOSIN ODUWOLE, Defendant-Appellant.
District & No. Fifth District
Docket No. 5-12-0039
Filed March 6, 2013
Held Defendant’s conviction for attempting to make a terrorist threat based on
(Note: This syllabus the discovery of defendant’s activities involving the purchase of firearms
constitutes no part of and writings concerning a mass shooting was reversed in the absence of
the opinion of the court evidence that defendant had targeted anyone in whom he intended to
but has been prepared instill fear of some threatened violence or had taken a substantial step
by the Reporter of toward making such a threat, especially when the activities cited by the
Decisions for the prosecution were consistent with scenarios other than terrorism.
convenience of the
reader.)
Decision Under Appeal from the Circuit Court of Madison County, No. 07-CF-1648; the
Review Hon. Richard L. Tognarelli, Judge, presiding.
Judgment Affirmed in part and reversed in part.
Counsel on Jeffrey Urdangen and Sarah Schrup, both of Bluhm Legal Clinic, and
Appeal Steven E. Art, of Loevy & Loevy, both of Chicago, for appellant.
Thomas D. Gibbons, State’s Attorney, of Edwardsville (Patrick Delfino,
Stephen E. Norris, and Sharon Shanahan, all of State’s Attorneys
Appellate Prosecutor’s Office, of counsel), for the People.
Panel JUSTICE CATES delivered the judgment of the court, with opinion.
Justices Chapman and Stewart concurred in the judgment and opinion.
OPINION
¶1 Following a jury trial, the defendant, Olutosin Oduwole, was convicted of attempt
(making a terrorist threat), a Class 1 felony, and unauthorized possession or storage of a
weapon in a public building, a Class A misdemeanor. The defendant was sentenced to 5
years in the Illinois Department of Corrections on the felony offense and a concurrent jail
term of 364 days and a $1,000 fine on the misdemeanor offense. The defendant appeals only
the felony conviction. On appeal, the defendant challenges the sufficiency of the evidence
to sustain the conviction, the constitutionality of the statutes under which he was charged,
the warrantless search of his vehicle, and the admissibility of certain items of evidence. For
the reasons stated herein, we reverse.
¶2 BACKGROUND
¶3 On July 24, 2007, the defendant was charged by information with attempt (making a
terrorist threat), a Class 1 felony, in violation of section 8-4(a) and section 29-20 of the
Criminal Code of 1961 (Code) (720 ILCS 5/8-4(a), 29D-20 (West 2002)), and unlawful
possession or storage of weapons in a public-supported building, a Class A misdemeanor,
in violation of section 21-6(a) of the Code (720 ILCS 5/21-6(a) (West 2002)).
¶4 In August 2007, the defendant was indicted on the same offenses. A second amended
indictment involving the same charges was returned in September 2011. Count I of the
second amended indictment alleges that the defendant, with the intent to commit the offense
of making a terrorist threat, in violation of section 29D-20 of the Code, performed a
substantial step toward the commission of that offense, in that he knowingly:
“a) possessed a piece of paper containing the following hand-written words, ‘send $2
to .... paypal account if this account doesn’t reach $50,000 in the next 7 days then a
murderous rampage similar to the VT shooting will occur at another highly populated
university. THIS IS NOT A JOKE!’ and;
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b) possessed a loaded .25 caliber, Jennings handgun, at 418-1C Cougar Village,
Southern Illinois University–Edwardsville; and
c) possessed firearm ammunition on the campus of Southern Illinois
University–Edwardsville; and
d) purchased and was awaiting delivery of a Hi-Point, .380 caliber, semi-automatic
handgun; and
e) purchased and was awaiting delivery of a Hi-Point, .380 caliber, semi-automatic
handgun; and
f) purchased and was awaiting delivery of a Hi-Point, .380 caliber, semi-automatic
handgun; and
g) purchased and was awaiting delivery of a Mac 10, .45 caliber, semi-automatic
firearm;
h) wrote a note ‘send $2 to .... paypal account if this account doesn’t reach $50,000
in the next 7 days then a murderous rampage similar to the VT shooting will occur at
another highly populated university. THIS IS NOT A JOKE!’; and
i) left a note in a vehicle on the Campus of Southern Illinois University–Edwardsville
which stated ‘send $2 to .... paypal account if this account doesn’t reach $50,000 in the
next 7 days then a murderous rampage similar to the VT shooting will occur at another
highly populated university. THIS IS NOT A JOKE!’; and
j) maintained, used and had access to a Pay-Pal Account; and all in violation of 720
ILCS 5/8-4(a), and against the peace and dignity of the said People of the State of
Illinois.”
¶5 The case was tried in Madison County, Illinois, in October 2011. Police officers from
Wood River and Southern Illinois University-Edwardsville (SIU-E) and an agent from the
Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) had varying roles in the
investigation and testified during the trial. A summary of the testimony and evidence
pertinent to the disposition of the appeal follows.
¶6 The investigation which resulted in the filing of the aforementioned charges against the
defendant in July 2007 arose in the shadows of the April 16, 2007, shootings on the campus
of Virginia Polytechnic Institute and State University (Virginia Tech). The record shows that
the State and the defendant agreed to a six-paragraph stipulation of the basic facts of the
incident at Virginia Tech. The stipulation was admitted as evidence, and it was read to the
jury in the State’s case on the first day of trial. The stipulation noted that on April 16, 2007,
Seung-Hui Cho, a full-time student, armed with a 9-millimeter Glock and a .22-caliber
Walther pistol, shot and killed 32 people, students and faculty, on the campus of Virginia
Tech, and then killed himself.
¶7 The evidence at trial showed that the defendant became the subject of an ATF
investigation during the summer of 2007. The investigation was opened after Michael
Copeland, a federal firearms licensee and owner of Timberline Gun Sales, reported concerns
about his contacts with the defendant to ATF. At that time, the defendant was a 21-year-old
student at SIU-E. He had a student housing contract and was living in an apartment on
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campus during the summer session, which ran from May 20, 2007, through August 5, 2007.
During the previous semester, he lived in an apartment in Wood River, Illinois.
¶8 Michael Copeland testified that the defendant contacted him by phone on July 3, 2007.
The defendant informed Copeland that he had purchased a Vulcan Mac 10 .45-caliber pistol
and three Hi-Point CF .380-caliber pistols over the Internet and that he needed a licensed
transfer agent to complete the transaction. Copeland agreed to act as the transfer agent. He
completed the required federal forms. He also requested a background check on the
defendant and it came back approved. Copeland testified that he became concerned about the
transaction because the handguns were inexpensive, high-caliber weapons and the defendant
had called several times to inquire about whether the handguns had been delivered. Copeland
further testified that the Hi-Point .380s have a 10-round magazine and that the Mac 10 is a
.45-caliber semiautomatic with a 30-round magazine.
¶9 Copeland called ATF on July 12, 2007, to report his concerns. He was advised that an
agent would contact him within a few days. At that time, Copeland decided that he would
not transfer the weapons to the defendant until he spoke with the ATF agent. Copeland
received a call from ATF Agent Paul Heiser on July 16, 2007. Copeland testified that he
could not recall the specifics of that conversation. He thought he had expressed concern
about the defendant’s behavior, but he would not dispute the notes in Agent Heiser’s report
which indicated that Copeland’s only concern was that the defendant might be a straw
purchaser. On July 24, 2007, Heiser met with Copeland and took possession of the handguns.
Copeland testified that his relationship with the defendant was limited to the purchase of the
four handguns. The defendant had not sought to purchase ammunition from or through him.
Copeland never met personally with the defendant. He noted that the defendant seemed
impatient, but not threatening, during their phone conversations.
¶ 10 Agent Heiser testified that he called Copeland on July 16, 2007. During the conversation,
he learned that the defendant had recently purchased three .380 Hi-Point pistols and one .45-
caliber MAC 10 semiautomatic pistol over the Internet; that the defendant asked Copeland
to act as the transfer agent; that the defendant phoned Copeland several times to inquire
about whether the guns had been delivered; and that Copeland became concerned about the
defendant because of the frequent calls. Agent Heiser wrote a report in which he noted that
the defendant was suspected of “possibly being a straw purchaser.” Heiser testified that as
of that conversation, there was no suspicion that the defendant was involved in other
potential criminal activity.
¶ 11 On July 16, 2007, Agent Heiser learned that the defendant had listed a residence address
in Wood River, Illinois. He contacted the Wood River police department to exchange
information about the defendant, and a cooperative investigation ensued. Agent Heiser also
learned that the defendant was registered as a student at SIU-E. He phoned the SIU-E police
department to give them a “head’s up” as a matter of officer safety. Rick Weissenborn, an
SIU-E detective, handled the call. Agent Heiser informed Weissenborn that the defendant
had ordered weapons over the Internet. Weissenborn immediately distributed a memo to the
SIU-E patrol division to alert their officers to use caution should they have contact with the
defendant.
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¶ 12 On July 18, 2007, Darrin Redden, an investigator with the Wood River police
department, phoned Weissenborn to inform him that an unattended vehicle, registered to the
defendant, was parked on North University Drive near Lewis Road. This location was on the
campus of SIU-E. Weissenborn drove to that location to verify that the vehicle was registered
to the defendant. Upon verifying that the vehicle was registered to the defendant,
Weissenborn instructed SIU-E patrol officers to monitor any activity around the vehicle. For
the next two days, Weissenborn drove past that location. He observed that the defendant’s
vehicle remained parked there.
¶ 13 On July 20, 2007, Weissenborn notified his supervisor, Sergeant Marty Tieman, that the
defendant’s vehicle had been left unattended at the roadside for more than two days. The
SIU-E police department had a written tow policy which authorized the towing of a vehicle
that had been abandoned or left unattended for more than 24 hours. The policy required the
officer to inventory the contents of the vehicle and list all items of value before the vehicle
was towed. An inventory was to be performed for purposes of protecting the owner’s
property and protecting the police department from an owner’s claim that an item of value
had been taken from the vehicle or damaged. In light of this policy, Sergeant Tieman
determined that the vehicle should be towed.
¶ 14 Sergeant Tieman testified that he ran the license plate and determined that the vehicle
was registered to the defendant at an address in Wood River. He searched the SIU-E database
for the defendant’s contact information and found two telephone numbers. Tieman called
both numbers, but no one answered. He did not attempt to call again. Tieman ordered Officer
Todd Schmidt to inventory the defendant’s vehicle and arrange for the tow.
¶ 15 Shortly before noon on July 20, 2007, Officer Schmidt began to inventory the contents
of the vehicle while Tieman stood by. Schmidt had seen Weissenborn’s officer safety memo,
and he knew that the vehicle belonged to the defendant. The defendant’s vehicle was locked.
Schmidt used a lock-out tool to unlock one of the doors. Upon entering the vehicle, Schmidt
observed six rounds of .25-caliber pistol ammunition in the center console. The bullets were
hard ball, not hollow point. Schmidt notified Sergeant Tieman about the ammunition and
continued with the inventory. Schmidt spotted a piece of paper which was partially
protruding from underneath the center console on the transmission hump. He noticed that
there was a picture of an inhaler on the paper. Schmidt testified that he thought the paper
might be a prescription or an item of medical importance to the vehicle owner, so he picked
it up. He read the writing on the front side the of paper and concluded that it was not a
prescription. Schmidt testified that the writing made no sense to him. He acknowledged that
there was no mention of Virginia Tech on the front side of the paper. Schmidt turned the
paper over and saw the following writings:
“I Lead She a follower,
I’m Single and I’m not wit her, but she
gott a throat deeper than a Sword Swallower/
glock to the head of
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SEND 2 to ... paypal account
if this account doesn’t reach $50,000 in the next
7 days then a murderous rampage similar to the
VT shooting will occur at another prestigious
highly populated university. THIS IS NOT A JOKE!”
¶ 16 Schmidt testified that he considered the last six lines on the back side to be “threatening.”
He stated that the top lines were written in black ink and that the last six lines were written
in blue ink. He did not know when the lines had been written.
¶ 17 Schmidt acknowledged that the paper was not lying out in the open and that it was not
prominently displayed inside the vehicle. He further acknowledged that a person standing
outside the vehicle would not be able to read the words written on it. He found no envelopes
or stamps inside the vehicle.
¶ 18 Schmidt showed the paper to Sergeant Tieman. Tieman proceeded to contact his
supervisors. Meanwhile, Schmidt secured the letter and ammunition in his patrol car and then
returned to further inventory the vehicle. Schmidt testified that he observed a baseball bat,
a large speaker, and miscellaneous clothing inside the trunk of the vehicle. He completed the
inventory and remained with the vehicle until it was towed.
¶ 19 Shortly after the defendant’s vehicle was towed, Schmidt obtained the defendant’s on-
campus address from the campus housing office. Schmidt, Tieman, and Weissenborn
proceeded to the defendant’s on-campus apartment. Tieman knocked on the door. A man,
who identified himself as the defendant, opened the door. Tieman asked the defendant to step
outside. When the defendant stepped outside, he was immediately arrested. The defendant’s
friend, Thomas Phillips, was also in the apartment. Phillips agreed to go to the police station
for an interview. After the apartment was cleared, it was secured pending the application for
a search warrant.
¶ 20 Otis Steward, the Wood River police chief, obtained a warrant to search the defendant’s
on-campus apartment. The warrant was executed at 5:25 p.m. on July 20, 2007. Agent Heiser
and Weissenborn assisted with the search, but Steward secured the items that were seized as
evidence. The items seized from the defendant’s bedroom included several composition
books, subject notebooks, two thumb drives, a .25-caliber cartridge found under the
defendant’s bed, a Cannon ZR600 camcorder, four 8-millimeter videocassettes,
miscellaneous papers and notes, a wallet, a checkbook, a prescription for an inhaler, and a
Dell laptop computer. A Jennings .25-caliber pistol was seized from a dresser inside the
defendant’s closet. The pistol had one round of ammunition in the chamber and seven rounds
in the magazine. Two desktop computers were seized from common areas in the apartment.
¶ 21 Steward testified that nearly 2,000 pages of writings were seized during the search.
Steward personally reviewed the writings in the notebooks taken from the defendant’s
bedroom. He discovered that a large percentage of the notebook entries appeared to be rap
lyrics and writings related to the defendant’s aspiring rap career. He noted that some of the
same symbols and words that were present on the paper seized from the defendant’s vehicle
were also present in the notebooks. Steward testified that the seized videocassettes were
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viewed and that nothing related to terrorism was observed on them.
¶ 22 Steward testified that he inspected the defendant’s former apartment in Wood River. It
was unoccupied and empty.
¶ 23 On October 7, 2007, Weissenborn went to the tow yard to take additional photos of the
defendant’s vehicle. While taking photos of the backseat, Weissenborn noticed release straps
for those seats. Weissenborn testified that his curiosity got the best of him and he pulled on
the straps, lowering the seat backs. He discovered a wad of clothing. When he looked
through it, he found a long-sleeve shirt, a short-sleeve shirt, and a knit cap with a ski mask.
Weissenborn seized the items as evidence.
¶ 24 During the course of the investigation, Weissenborn and other officers interviewed the
defendant’s fraternity brothers, students, and many of the defendant’s instructors.
Weissenborn noted that none of those interviewed expressed any concern about the
defendant.
¶ 25 During cross-examination, Weissenborn conceded that he had developed no evidence that
the defendant was ever going to communicate the content of the piece of paper seized from
his vehicle to anyone. The search of the defendant’s apartment did not yield any written plans
to distribute a threat. The officers did not find a campus map. They did not find ammunition
for the four handguns that the defendant had purchased over the Internet. They discovered
no evidence to indicate that the defendant had purchased or sought to purchase ammunition
for those handguns.
¶ 26 Weissenborn testified that he regarded the six lines on the paper seized from the vehicle
as a threat to the SIU-E community. Weissenborn considered the defendant’s Internet
purchase of the four handguns, the defendant’s possession of the handgun in his on-campus
apartment, and the piece of paper found in the defendant’s vehicle sufficient evidence that
the defendant had engaged in substantial efforts to make a threatening communication.
Weissenborn candidly stated that he could not possibly consider the six lines on the paper
seized from the defendant’s vehicle to represent creative writing, given that the Virginia Tech
incident occurred three months prior and given his knowledge of the defendant’s Internet
purchase of four handguns.
¶ 27 The State also presented evidence to establish that the defendant had purchased the
Jennings .25-caliber pistol in February 2007. David Welch, a licensed federal firearms
transfer agent, testified that he met with the defendant on February 22, 2007, completed the
federal forms, and obtained an approved background check. Welch transferred the Jennings
pistol to the defendant. Welch noted that the defendant contacted him again sometime later
about purchasing guns for his buddies. He advised the defendant that it was illegal for a
person who lawfully purchased a firearm to then sell or give that firearm to a buddy who
could not lawfully purchase one for himself. Welch testified that the defendant had done
nothing to raise a suspicion that he was a terrorist, and that his only concern was that the
defendant might become involved in an illegal straw purchase.
¶ 28 Regina Hayes, the police chief of SIU-E, testified that according to state law, a student
must obtain written permission from the police chief of the public university to bring a
weapon on campus. Hayes stated that the defendant never sought permission to bring a gun
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on campus and that she never gave him permission to do so.
¶ 29 The parties stipulated that the defendant opened a PayPal account in the name of Jeff
Robinson, on May 31, 2007, and that the account was still open on the date of the
defendant’s arrest. The State presented evidence to show that in July 2007, the defendant had
signed for registered mail, addressed to Jeffrey Robinson, at the Wood River address.
¶ 30 Lindell Moore, a forensic specialist in document examination, compared the handwriting
on the paper seized from the defendant’s vehicle with other known writing samples of the
defendant. He concluded that the writing on the paper and the samples were made by the
same person.
¶ 31 Angela Horn, a forensic specialist in firearms, test-fired the defendant’s Jennings pistol
and determined that it functioned properly.
¶ 32 Michael Bazzell, an Alton detective who performs forensic analysis of computers and
investigates computer-related crimes, analyzed the drives of the computers seized from the
defendant’s apartment. Bazzell did not find anything of interest on the hard drives of the
desktop computers. When he checked the laptop’s hard drive, he located three digital
photographs of the defendant holding a small .380-caliber handgun. Bazzell also located a
few “hits” when he searched the hard drive for the phrase “Virginia Tech will happen again.”
Bazzell noted that these “hits” were made in June 2007.
¶ 33 Bazzell also discovered that there had been a Microsoft Movie Maker on the hard drive.
Bazzell testified that the Movie Maker file had been deleted and that the music and picture
content could not be recovered. He noted that some captions of the file remained in a
compressed drive. Bazzell explained that the reason the captions were not deleted with the
other content was because the laptop has an automatic storage function. The audio files had
names such as “machine G,” “scream F one,” and “sacred one beats,” and the picture files
had names of universities such as Harvard and Penn State. Bazzell acknowledged that he did
not know what music or pictures accompanied the captions because the entire file had been
deleted. Bazzell testified that if the time stamp on the laptop is accurate, the Movie Maker
file was created on or before May 25, 2007, and it was backed up on June 6, 2007. Bazzell
found no evidence to indicate that the file was transferred to another computer, an e-mail
address, or another location before it was deleted.
¶ 34 Alexandria Scherff, the defendant’s former girlfriend, was the State’s final witness.
Scherff testified that she originally owned the laptop that had been seized from the
defendant’s bedroom. She loaned the laptop to the defendant around May 2007, and she
never used it again. Scherff testified that she never created a Movie Maker file on that
computer.
¶ 35 The defense presented character testimony from a number of the defendant’s friends and
fraternity brothers. The testimony revealed that the defendant was born in St. Louis,
Missouri; that he was the president of his fraternity and a popular student; and that he and
his friends shared a hobby of shooting firearms.
¶ 36 Marcell Doyle attended SIU-E with the defendant in 2004 and 2005. Doyle testified that
he promotes rap artists. He promoted the defendant’s music “on his page.” Doyle noted that
some of the defendant’s lyrics were violent and that violent lyrics are common in the rap
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industry. Doyle testified that he never knew the defendant to be a violent person. He found
the defendant to be a nice person.
¶ 37 Thomas Phillips testified that he was at the defendant’s on-campus apartment at the time
of the defendant’s arrest. Phillips stated that he agreed to talk with the police. He was
interviewed by Officer Weissenborn. Phillips testified that he told Weissenborn that the
defendant came up with the idea for the Virginia Tech rap lyrics while they watched an
episode of “Law and Order.”
¶ 38 Dr. Charis Kubrin, a professor in the department of criminology, law, and society at the
University of California-Irvine, and an expert in the area of rap music, testified for the
defense. Dr. Kubrin reviewed the content of the paper seized from the defendant’s vehicle
and numerous pages in the defendant’s notebooks. Dr. Kubrin opined that the writings on the
paper constituted the formative stages of a rap song.
¶ 39 ANALYSIS
¶ 40 Initially, we consider the defendant’s contention that the State failed to present sufficient
evidence to prove beyond a reasonable doubt that he performed an act or acts which
constituted a substantial step toward the commission of the offense of making a terrorist
threat, and that he did so with the intent to make a terrorist threat.
¶ 41 When considering a challenge to the sufficiency of the evidence, the reviewing court
must determine whether, after viewing the evidence in a light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt. People v. Collins, 106 Ill. 2d 237, 261, 478 N.E.2d 267, 277
(1985). The trier of fact has the responsibility to assess the credibility of the witnesses and
the weight to be given the testimony, to resolve inconsistencies and conflicts in the evidence,
and to draw reasonable inferences from the evidence, and the reviewing court will not
substitute its judgment for that of the trier of fact on those matters. Collins, 106 Ill. 2d at 261-
62, 478 N.E.2d at 277. A criminal conviction will not be set aside unless the evidence is so
improbable or unsatisfactory that it creates a reasonable doubt of the defendant’s guilt.
Collins, 106 Ill. 2d at 261, 478 N.E.2d at 276.
¶ 42 In order to prove the offense of attempt (making a terrorist threat), the State must
establish: (a) that the defendant performed an act which constituted a substantial step toward
the commission of the offense of making a terrorist threat and (b) that the defendant did so
with the intent to commit that offense. 720 ILCS 5/8-4(a), 29D-20(a) (West 2002); Illinois
Pattern Jury Instructions, Criminal, No. 6.07 (4th ed. 2000). A person is guilty of making a
terrorist threat when, with the intent to intimidate or coerce a significant portion of a civilian
population, he in any manner knowingly threatens to commit or threatens to cause the
commission of a terrorist act and thereby causes a reasonable expectation of fear of the
imminent commission of a terrorist act. 720 ILCS 5/29D-20(a) (West 2002). A terrorist act
is defined, in pertinent part, as any act which is intended to cause or create a risk and does
cause or create a risk of death or great bodily harm to one or more persons. 720 ILCS 5/29D-
10(l)(1) (West 2002). For purposes of this case, the trial court gave a nonpattern instruction
to define “threat.” Quoting from Virginia v. Black, 538 U.S. 343, 359 (2003), the trial court
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instructed the jury that a threat is a statement by which “the speaker means to communicate
a serious expression of an intent to commit an act of unlawful violence to a particular
individual or group of individuals.”
¶ 43 The offense of attempt is generally recognized as an inchoate offense because it is
preliminary to another and more serious principal offense. See 720 ILCS Ann. 5/art. 8,
Committee Comments-1961, at 576-77 (Smith-Hurd 2002). It has been long recognized that
troublesome questions arise in the area of inchoate offenses in regard to what intent is
necessary and when preparation to commit an offense ceases and perpetration of the offense
begins. 720 ILCS Ann. 5/8-4, Committee Comments-1961, at 620 (Smith-Hurd 2002).
¶ 44 It is impossible to compile a definitive list of acts for each criminal offense which, if
performed, would constitute a substantial step toward the commission of that offense. People
v. Terrell, 99 Ill. 2d 427, 433, 459 N.E.2d 1337, 1340 (1984). What constitutes a substantial
step must be determined on a case-by-case basis by evaluating the unique facts and
circumstances in each particular case. People v. Smith, 148 Ill. 2d 454, 459, 593 N.E.2d 533,
535 (1992); Terrell, 99 Ill. 2d at 433, 459 N.E.2d at 1340. There must be an act or acts
toward the commission of the principal offense, and the act or acts must not be too far
removed in time and space from the conduct that constitutes the principal offense. Smith, 148
Ill. 2d at 463, 593 N.E.2d at 537 (quoting Ill. Ann. Stat., ch. 38, ¶ 8-4, Committee
Comments-1961, at 499 (Smith-Hurd 1989)). A defendant does not have to complete the last
proximate act to the actual commission of the principal offense, but mere preparation is not
enough. Terrell, 99 Ill. 2d at 433, 459 N.E.2d at 1340. The facts are to be placed on a
“continuum between preparation and perpetration.” Terrell, 99 Ill. 2d at 434, 459 N.E.2d at
1341. A substantial step occurs when the acts taken in furtherance of the offense place the
defendant in a dangerous proximity to success. People v. Paluch, 78 Ill. App. 2d 356, 359,
222 N.E.2d 508, 510 (1966).
¶ 45 Though the “substantial step” issue must be determined based upon the facts and
circumstances in each particular case, the Illinois Supreme Court has said that courts may be
guided by prior case law and by the Model Penal Code (Model Penal Code § 5.01(2) (1985)).
Terrell, 99 Ill. 2d at 434-36, 459 N.E.2d at 1341-42. The Model Penal Code lists types of
conduct that are to be considered sufficient as a matter of law to support an attempt
conviction, as long as the conduct is strongly corroborative of the actor’s criminal purpose.
The types of conduct referenced in the Model Penal Code follow:
“(a) lying in wait, searching for or following the contemplated victim of the crime;
(b) enticing or seeking to entice the contemplated victim of the crime to go to the
place contemplated for its commission;
(c) reconnoitering the place contemplated for the commission of the crime;
(d) unlawful entry of a structure, vehicle or enclosure in which it is contemplated that
the crime will be committed;
(e) possession of materials to be employed in the commission of the crime, that are
specially designed for such unlawful use or that can serve no lawful purpose of the actor
under the circumstances;
(f) possession, collection or fabrication of materials to be employed in the
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commission of the crime, at or near the place contemplated for its commission, if such
possession, collection or fabrication serves no lawful purpose of the actor under the
circumstances;
(g) soliciting an innocent agent to engage in conduct constituting an element of the
crime.” Model Penal Code § 5.01(2) (1985).
¶ 46 The facts and circumstances in this case do not squarely fit within any of the types of
conduct identified in the Model Penal Code. Even if we assess the defendant’s acts in light
of subsections (e) and (f) above, we cannot conclude that the PayPal account, the Movie
Maker file, and the paper seized from the defendant’s vehicle are materials that served no
lawful purpose of the defendant. And while there is no shortage of published Illinois
decisions discussing what constitutes a substantial step in a wide variety of criminal offenses,
the parties have not cited any Illinois cases which discuss what constitutes a substantial step
toward commission of the specific offense of making a terrorist threat, and we have found
none. As such, these general resources provide no particular guidance in the analysis of the
“substantial step” issue under the peculiar facts in this case.
¶ 47 The State argues that the act of crafting the language that was written on the paper seized
from the defendant’s vehicle, the creation of the Movie Maker file, and the opening of the
PayPal account are actions which, whether taken individually or collectively, establish a
substantial step toward the commission of the offense of making a terrorist threat. We
disagree.
¶ 48 On the continuum between preparation and perpetration, the acts cited by the State hover
much closer to preparation. The cited acts do not place the defendant in dangerous proximity
to success. The paper containing the alleged threats was discovered inside the defendant’s
locked vehicle. The paper was not prominently displayed. It was stuck underneath the center
console. No stamps or envelopes were found inside the vehicle. Officer Schmidt testified that
he looked at the paper only because he noticed the inhaler logo on it and thought it might be
a medical prescription. Officer Schmidt acknowledged that a person outside the vehicle could
not read any of the writing on that paper. Based on Officer Schmidt’s testimony, the
allegedly threatening lines were written on the side opposite the logo and would have been
facedown and not visible to anyone looking inside the vehicle. Detective Weissenborn
conceded that there was no evidence that the defendant was going to disseminate the writing
on the paper seized from his car. The record reveals that there was no evidence of a
communication of the writing in any form and no evidence that the defendant ever had a plan
to disseminate it. Additionally, the evidence established that the Movie Maker file had been
deleted sometime prior to the day of the defendant’s arrest and that the captions in that file
were preserved only because the laptop had an automatic backup function. Detective Bazzell,
the forensic analyst, testified that he found no evidence that the Movie Maker file had been
transferred to any other person, device, or location before it was deleted. Further, PayPal
accounts and Movie Maker files are not materials specially designed for unlawful purposes.
¶ 49 Finally, there is no evidence from which to find or infer that the defendant had identified
a particular audience for his communications and no evidence from which to find or infer
that he had targeted an individual or group in whom he intended to instill a fear that some
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threatened violence would occur. In the absence of sufficient evidence that the defendant had
taken a substantial step toward making a terrorist threat, his writings, as abhorrent as they
might be, amount to mere thoughts. See, e.g., People v. Thoma, 171 Ill. App. 3d 313, 525
N.E.2d 572 (1988) (defendant’s conduct was mere speech which did not approach the
required specificity of a substantial step toward commission of the offense of attempted
patronization of a prostitute); United States v. Gladish, 536 F.3d 646 (7th Cir. 2008) (the
requirement of evidence of a substantial step serves to distinguish individuals who present
actual threats from those who may be seeking notoriety or have another agenda). The
evidence in this record establishes, at best, preparatory activities that were consistent with
a variety of scenarios.
¶ 50 The Illinois Supreme Court has noted that one difficulty in defining attempt is
recognizing where the line is drawn between allowing the police to intervene in an unfolding
course of criminal conduct before intended harm is actually done and avoiding punishment
for inconclusive or equivocal acts which may or may not eventually lead to criminal harm.
Terrell, 99 Ill. 2d at 435, 459 N.E.2d at 1341. It is difficult to draw the line to properly
balance the needs of the police and the public against the rights of the individual citizens.
Terrell, 99 Ill. 2d at 441, 459 N.E.2d at 1344; United States v. Cea, 914 F.2d 881, 888 (7th
Cir. 1990). The solemn obligation to measure in an objective, detached manner whether the
act or acts of an individual are too far removed in time and space from the conduct which
constitutes the principal offense initially lies with the prosecutor and then with the trial court.
¶ 51 Whether the intervention by law enforcement here may have preempted the making of
a terrorist threat or the attempt to make a threat is mere supposition. The facts and
circumstances presented here, when taken in a light most favorable to the prosecution, do not
prove beyond a reasonable doubt that the defendant had taken a substantial step toward
making a terrorist threat. More evidence was necessary than what was shown at trial. The
defendant’s conviction for attempt (making a terrorist threat) must be reversed.
¶ 52 Given our disposition of this issue, we need not address the defendant’s other contentions
raised in this appeal.
¶ 53 CONCLUSION
¶ 54 Accordingly, the defendant’s conviction of the offense of attempt (making a terrorist
threat) is reversed. The defendant did not appeal his conviction and sentence for possession
of a weapon in a public building, and that conviction is affirmed.
¶ 55 Affirmed in part and reversed in part.
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