115869

No. IN THE SUPREME COURT OF ILLINOIS

PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Petitioner,

v.

OLUTOSIN ODUWOLE, Defendant-Respondent.

) ) ) ) ) ) ) ) ) ) ) ) )

On Petition for Leave to Appeal from the Appellate Court of Illinois, Fifth Judicial District No. 5-12-0039 There on Appeal from the Circuit Court of the Third Judicial Circuit, Madison County, Illinois No. 07-CF-1648 The Honorable Richard Tognarelli, Judge Presiding.

PETITION FOR LEAVE TO APPEAL LISA MADIGAN Attorney General of Illinois 100 West Randolph Street, 12th Floor Chicago, Illinois 60601 HON. THOMAS D. GIBBONS State’s Attorney Madison County 157 North Main Street Edwardsville, Illinois 62025 PATRICK DELFINO, Director STEPHEN E. NORRIS, Deputy Director SHARON SHANAHAN, Staff Attorney State’s Attorneys Appellate Prosecutor Fifth District Office 730 East Illinois Highway 15, Suite 2 P. O. Box 2249 Mt. Vernon, Illinois 62864 (618) 244-2107 05dispos@ilsaap.org COUNSEL FOR PLAINTIFF-PETITIONER PEOPLE OF THE STATE OF ILLINOIS
No. 115869 04/10/2013

OF COUNSEL

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PRAYER FOR LEAVE TO APPEAL Pursuant to Supreme Court Rules 315, 604(a)(2) and 612(b), the People of the State of Illinois respectfully petition for leave to appeal from the judgment of the Appellate Court, Fifth District, which reversed the jury’s verdict finding defendant guilty of attempt (making a terrorist threat). The charge against defendant was based on a note– in defendant’s illegally parked, abandoned car– that threatened a “murderous rampage” similar to that which had recently occurred at Virginia Tech unless money was paid into a specified PayPal account. The State presented evidence of a similarly worded threat that had been deleted from defendant’s computer, evidence of a gun defendant owned and others of which he was waiting to take delivery, a PayPal account under a fictitious name, and other references to Virginia Tech found on defendant’s computer. The jury was properly instructed on attempt, terrorist acts, and terrorist threats. The jury deliberated and found defendant guilty of attempt (making a terrorist threat). This Court’s review is warranted because of the importance of the question presented. In crafting the Terrorism Act, our legislature found “the devastating consequences of the barbaric attacks on the World Trade Center and the Pentagon on September 11, 2001 underscore the compelling need for legislation that is specifically designed to combat the evils of terrorism. Terrorism is inconsistent with civilized society and cannot be tolerated.” 720 ILCS 5/29D-5. The legislature found an “urgent[] need” for laws to fight terrorism and to protect Illinois citizens against terrorist acts. Id.

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Accordingly, the legislature chose to strengthen our laws to ensure that terrorists are prosecuted and punished with appropriate severity. Id. This case is the first to apply the resulting statute prohibiting the making of a terrorist threat. 720 ILCS 5/29D-20. In improperly reweighing the evidence presented to the jury and applying the outdated “dangerous proximity” test, the appellate court overstepped its permissible function in resolving cases involving the sufficiency of the evidence, taking out of the hands of a properly instructed jury its ability to apply this important statute. As the United States Supreme Court observed in Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original), “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” The Court went on to note that, “[o]nce a defendant has been found guilty of the crime charged, the factfinder’s role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution.” Jackson, 443 U.S. at 319. By usurping the jury’s role as factfinder, applying an outdated standard for attempt, and reversing defendant’s conviction for attempting to make a terrorist threat, the appellate court has created confusion in the application of the Terrorism Act, thus warranting this Court’s review.

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STATEMENT REGARDING JUDGMENT AND REHEARING On March 6, 2013, the appellate court rendered its opinion, reversing the jury’s verdict finding the defendant guilty of attempt (making a terrorist threat). No petition for rehearing was filed. POINTS RELIED UPON IN SEEKING REVIEW By usurping the jury’s role as factfinder, applying an outdated standard for attempt, and reversing defendant’s conviction for attempting to make a terrorist threat, the appellate court has created confusion in the application of the Terrorism Act, thus warranting this Court’s review. STATEMENT OF FACTS Defendant was charged with attempt (making a terrorist threat). C 1, 23; People v. Oduwole, 2013 IL App (5th) 120039, ¶¶ 3-4. The indictment alleged that the defendant, with the intent to commit the offense of making a terrorist threat, performed a substantial step toward the commission of that offense, in that he knowingly (1) 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! which he left in his car on the campus of Southern Illinois University–Edwardsville (“SIUE”); (2) possessed a loaded .25 caliber Jennings handgun at SIU-E; (3) possessed firearm ammunition on the campus of SIU-E; (4) purchased and was awaiting delivery of two Hi–Point .380 caliber, semiautomatic handguns and a Mac 10 .45 caliber, semiautomatic firearm; and (5) obtained a PayPal Account. C 1, 23. -3-

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The case was tried in Madison County, Illinois, in October 2011. It arose in the shadows of the April 16, 2007 shootings on the campus of Virginia Polytechnic Institute and State University (“Virginia Tech”). Oduwole, at ¶¶ 5-6. A stipulation of the basic facts of the incident at Virginia Tech was read to the jury in the State’s case on the first day of trial. C 500; R 704. Defendant was a 21-year old student at SIU-E. C 565, 568; R 1034. He became the subject of an ATF investigation during the summer of 2007, after Michael Copeland, a federal firearms licensee and owner of Timberline Gun Sales, became concerned about his contacts with the defendant and reported them to ATF. R 676-77. Copeland testified that defendant contacted him by phone on July 3, 2007, and 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. R 670. Copeland became concerned about the transaction and called ATF because the handguns were inexpensive, high-caliber weapons and defendant had called several times to inquire about whether they had been delivered. R 670, 673-74, 676. The Hi–Point .380s have a 10–round magazine and the Mac 10 is a .45–caliber semiautomatic with a 30–round magazine. R 674-75, 715. ATF Agent Heiser met with Copeland and took possession of the handguns. R 712. Agent Heiser contacted the Wood River police department to exchange information about defendant, and a cooperative investigation ensued. R 711. Agent Heiser also learned that defendant was registered as a student at SIU-E, so he phoned the SIU-E police department to give them a “heads up” as a matter of officer safety. R 711, -4-

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852, 568. Rick Weissenborn, an SIU-E detective, handled the call. R 851. Agent Heiser informed Weissenborn that defendant had ordered weapons over the Internet. Id. 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. R 729, 852. Shortly thereafter, an investigator with the Wood River police department phoned Weissenborn to inform him that an unattended vehicle registered to defendant was parked on the side of a road on the campus of SIU-E. R 852. After defendant’s car sat there for more than two days, SIU-E police decided to tow the car. Id. The SIU-E police department had a written tow policy that authorized the towing of a vehicle that had been abandoned or left unattended for more than 24 hours. R 737, 768. The policy required the officer to inventory the contents of the vehicle and list all items of value before the vehicle was towed. R 737. 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. Id. Prior to the inventory and tow, SIU-E police unsuccessfully attempted to contact defendant. R 769. As a result, Officer Schmidt began to inventory the contents of the vehicle while Sergeant Tieman stood by. R 737, 766. Schmidt and Tieman knew that the vehicle belonged to defendant. R 744, 768. Upon entering the vehicle, Schmidt observed six rounds of ammunition in the center console. R 739. Next, he spotted a piece of paper that was on the transmission hump. R 739. He noticed that there was a picture of an inhaler on the paper. R 741. Schmidt testified that he thought the paper might be a prescription or an item of medical

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importance to the vehicle owner, so he picked it up and read it. Id. One side of the paper contained the following handwritten statement: I Lead She a follower, I’m single I’m not wit her, but she gott a throat deeper than a Sword Swallower/ glock to the head of 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! R 740; P Ex. 6. When Schmidt showed the note to Sergeant Tieman, he considered these lines to be threatening. R 772. Schmidt acknowledged that the paper was not lying out in the open and that it was not prominently displayed inside the vehicle. R 750. He further acknowledged that a person standing outside the vehicle would not be able to read the words written on it. Id. Schmidt showed the paper to Sergeant Tieman, who contacted his supervisors. R 744, 770. Meanwhile, Schmidt secured the letter and ammunition in his patrol car, completed the inventory, and remained with the vehicle until it was towed. R 745. Shortly thereafter, Schmidt, Tieman, and Weissenborn proceeded to defendant’s on-campus apartment and arrested him. R 748, 775. A search of the apartment revealed a loaded .25–caliber pistol, a .25–caliber cartridge, a prescription for an inhaler, two desktop computers, a laptop computer, several composition books, two thumb drives, a camcorder, four videocassettes, miscellaneous papers and notes, a wallet, and a

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checkbook. R 790-807. Most of the notebook entries appeared to be rap lyrics and writings related to defendant’s aspiring rap career. R 821. A more complete search of defendant’s car revealed a long-sleeve shirt, a short-sleeve shirt, and a knit ski mask in an area inside the trunk. R 866-67. During the course of the investigation, officers interviewed defendant’s fraternity brothers, students, and many of defendant’s instructors, none of whom expressed any concern about defendant. R 898. Weissenborn considered defendant’s Internet purchase of the four handguns, defendant’s possession of the handgun in his on-campus apartment, and the piece of paper found in defendant’s vehicle sufficient evidence that defendant had engaged in substantial efforts to make a threatening communication. R 875. Weissenborn stated that he could not possibly consider the lines on the paper seized from defendant’s vehicle to represent creative writing, given that the Virginia Tech incident occurred three months prior and given his knowledge of defendant’s Internet purchase of four handguns. R 926-27. 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 defendant’s arrest. R 945. The State presented evidence to show that in July 2007, defendant had signed for registered mail, addressed to Jeffrey Robinson. R 946-51. A forensic specialist in document examination compared the handwriting on the paper seized from defendant’s vehicle with other known writing samples of defendant and concluded that the note was written by defendant. R 956-57. Michael Bazzell, a detective who performs forensic analysis of computers and investigates computer-related crimes, analyzed the drives of the computers seized from -7-

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defendant’s apartment. R 1039. When he checked the laptop’s hard drive,1 he located three digital photographs of defendant holding a small .380–caliber handgun. R 1046. Bazzell also located a few “hits” when he searched the hard drive for the phrase “Virginia Tech will happen again.” R 1048. Bazzell noted that these “hits” were made in June 2007. R 1049. Bazzell also discovered that there had been a Microsoft Movie Maker file on the hard drive. R 1057. Bazzell testified that the file had been deleted and that the audio and picture content could not be recovered. R 1060. However, the text and some captions remained in a compressed drive. R 1061. The deleted Movie Maker file found on the computer contained the following text: Do you remember the Chaos? At Virginia Tech? Do you remember... The the [sic] Murder? Well, guess what its going to happen again in JUNE 2007 unless... The viewers of this collectively deposit a total of $200,000 in the following paypal account...jmac21881@yahoo.com if you don’t have a paypal account you [c]an set one up quickly at: www.paypal.com OR ELSE
THE NUMBER OF STUDENTS KILLED IN VIRGINIA TECH WILL BE TOPPED DURING THE SUMMER SCHOOL SYMESTER

[sic]

AT A TARGET UNIVERSITY

THIS IS NOT A JOKE! R 1060; P. Ex. 121. The audio files had names such as “machine G,” “gun_reload,” and “scream F one,” and the picture files had names of universities such as Harvard and Penn State. R 1061. Bazzell acknowledged that he did not know what audio or pictures accompanied the captions because the entire file had been deleted. R 1066. The Movie Maker file was created on or before May 25, 2007, and it was backed up on June 6, 2007.
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The laptop computer belonged to Alexandria Scherff, defendant’s former girlfriend. R 1082. She loaned the laptop to defendant around May 2007, and never used it again. R 1082-83. She testified that she never created a Movie Maker file on that computer. R 1083-84. -8-

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R 1007, 1063. Although defendant deleted the file sometime after June 6, 2007 and before his arrest, the file could have been transferred to online storage, email, or a different computer. R 1063; 1074-75. Defendant presented character testimony from a number of his friends and fraternity brothers. R 966, 1094, 1130. He also presented the testimony of Dr. Charis Kubrin, a professor at the University of California–Irvine, and an expert in the area of rap music. R 1050-52. Dr. Kubrin reviewed the content of the paper seized from defendant’s vehicle and numerous pages in defendant’s notebooks and opined that the writings on the paper constituted the formative stages of a rap song. R 1194. The jury was instructed on the definition of a terrorist act, making a terrorist threat, and attempt. C 524-26; R 1309-10. They were instructed that in order to convict defendant of attempt (making a terrorist threat), he had to have the intent to commit making a terrorist threat and do any act that constituted a substantial step toward the commission of the offense. C 523; R 1309. The jury was instructed that the offense attempted need not have been committed. Id. The jury found defendant guilty of attempt (making a terrorist threat). C 557; R 1321. Although defendant raised several issues on appeal, the appellate court addressed only one – whether there was sufficient evidence that defendant had taken a substantial step towards making a terrorist threat. Oduwole, at ¶ 51. The appellate court acknowledged the “troublesome questions” that arise in determining when preparation to commit an offense ceases and perpetration of the offense begins. Id. at ¶ 43. The court further recognized that it was impossible to compile a definitive list of acts for each -9-

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criminal offense, and noted that the facts had to be placed on a continuum between preparation and perpetration. Id. at ¶ 44. It determined that the facts and circumstances here did not fit squarely within any existing guidelines and that there were no cases discussing what constitutes a substantial step toward commission of the specific offense of making a terrorist threat. Id. at ¶ 46. Applying the “dangerous proximity” test, the appellate court rejected the jury’s conclusion that the hand-written note, left in his abandoned, illegally parked car where it was likely to be discovered, the deleted Movie Maker file, the photographs of defendant with a gun, the “hits” from his computer that showed the phrase “Virginia Tech will happen again,” the gun he illegally possessed on campus, the guns he had ordered, his extreme impatience as he awaited receipt of the guns, and the PayPal account set up under an alias and referenced in both notes, established attempt. Id. at ¶¶ 44, 47-48. The appellate court concluded that the paper in defendant’s car was not prominently displayed and there was no indication that defendant was going to disseminate it. Id. at ¶ 48. It noted that the Movie Maker file had been deleted from the laptop computer and rejected any argument that it could have been transferred before it was deleted. Id. The appellate court concluded that PayPal accounts and Movie Maker files are not specially designed for unlawful purposes. Id. Finally, the appellate court concluded that there was no particular audience identified for his communications. Id. at ¶ 49. Thus, although the appellate court found defendant’s writings “abhorrent,” it concluded that these “preparatory activities” did not place the defendant in “dangerous proximity to success.” Id. at ¶¶ 48, 49. -10-

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ARGUMENT A person commits the offense of attempt when, with intent to commit a specific offense, he does any act that constitutes a substantial step toward the commission of that offense. 720 ILCS 5/8-4(a). A substantial step can be the very first step beyond mere preparation. People v. Hawkins, 311 Ill. App. 3d 418, 428 (4th Dist. 2000). That more steps could conceivably have been taken before actual commission of a crime does not render that first step insubstantial. Id. The modern rule, as set forth in the Modern Penal Code, does not require a dangerous proximity to success. People v. Sweigart, 2013 IL App (2d) 110885, ¶ 28. Modern standards enable a trier of fact to find a “substantial step” even where the commission of the crime still requires several major steps to be taken. Id. A determination of what acts constitute a substantial step toward the commission of a crime can only be accomplished by evaluating the facts and circumstances of the particular case. People v. Terrell, 99 Ill. 2d 427, 433 (1984). Because juries, and not courts of review, are best equipped to evaluate those facts and circumstances, a reviewing court must give the State the benefit of all reasonable inferences and should not substitute its judgment for that of the jury in cases in which the facts could lead to either of two inferences unless the inference accepted by the jury is inherently impossible or unreasonable. People v. Leger, 149 Ill. 2d 355, 388 (1992). Instead, the only relevant question for a court of review is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson, 443 U.S. at 319 (emphasis in original). In this case, a rational jury could and did find the essential elements of attempt -11-

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and the appellate court overstepped its bounds by improperly reweighing the copious evidence presented to the jury. Attempt is an inchoate offense; by definition it is an incomplete effort to commit the underlying crime. People v. Juris, 189 Ill. App. 3d 934, 936 (2d Dist. 1989). The incomplete effort is not equivalent to the completed effort. Id. Black’s Law Dictionary defines an inchoate offense as “Partially completed or imperfectly formed; just begun.” BLACK’S LAW DICTIONARY (9th ed. 2009) (Westlaw). As an example of an inchoate offense, Black’s gives the following illustration: [T]he performance of a criminal attempt must always have been reached before the end is gained. In all these instances it is the ultimate crime which is inchoate and not the preliminary crime, the position indeed being just the same as in the example imagined above of a man who stole a revolver and committed other crimes in order to effect his purpose of murder. There the murder was inchoate, but the larceny and other crimes (including the attempt) were completed. BLACK’S LAW DICTIONARY (9th ed. 2009) (Westlaw). Just as the man who stole a revolver in order to effect his purpose of murder commits attempt murder, the person who drafts a threat, buys the guns to act on the threat, and sets up the account to receive the extorted funds commits the inchoate offense of attempt making a terrorist threat. “An uncommunicated threat, by definition, cannot threaten . . . . It follows that if a threat fortuitously goes unheard, the person who utters it is guilty of an attempt, not the completed offense.” Evans v. United States, 779 A.2d 891, 894 (D.C. 2001). Here, defendant took several actions which, taken together, constitute a substantial step towards making a terrorist threat. When all the other steps are considered, the final act of leaving the note in the illegally parked abandoned car for several days, knowing it -12-

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was likely to be discovered by campus police, was a step beyond mere preparation, on the continuum between preparation and perpetration, even if it did not place defendant in dangerous proximity to success. Terrell, 99 Ill. 2d at 434; Hawkins, 311 Ill. App. 3d at 428; Sweigart, ¶ 28. Defendant crafted not one, but two, versions of the threat. The one found in defendant’s car stated: Send $2 to....paypal account if this amount doesn’t reach $50,000 in the next 7 days then a murderous rampage similar to the VT [Virginia Tech] shooting will occur at another prestigious highly populated university. THIS IS NOT A JOKE! P. Ex. 6. Defendant left this threat in his car and then abandoned it, illegally parked on the side of a busy road. R 1108. A reasonable person would know that police would likely tow the car and inventory its contents. While the police may, or may not, have been the intended recipient of the threat, it is immaterial whether a threat is conveyed to its intended victim or a third party. United States v. Parr, 545 F.3d 491, 497 (7th Cir. 2008). And if a defendant takes all steps necessary to perpetrate the completed crime of making a threat, but the crime is not completed only because the written threat is intercepted before delivery to the threatened person, the defendant properly may be found to have taken a substantial step and be found guilty of attempted criminal threat. People v. Toledo, 26 P.3d 1051,1057 (Cal. 2001); Evans, 779 A.2d at 894. The second version of the threat was the Movie Maker file found on defendant’s computer. It read: Do you remember the Chaos? At Virginia Tech? Do you remember... The the [sic] Murder? Well, guess what its going to happen again in JUNE 2007 -13-

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unless... The viewers of this collectively deposit a total of $200,000 in the following paypal account...jmac21881@yahoo.com if you don’t have a paypal account you [c]an set one up quickly at: www.paypal.com OR ELSE
THE NUMBER OF STUDENTS KILLED IN VIRGINIA TECH WILL BE TOPPED DURING THE SUMMER SCHOOL SYMESTER

[sic]

AT A TARGET UNIVERSITY

THIS IS NOT A JOKE! P. Ex. 121. This version of the threat added a reference to a specific PayPal account that defendant asked his girlfriend to set up for him. R 1084. Notably, the appellate court failed to consider the text of this file that had existed on defendant’s computer shortly before the handwritten threat was found in his car. Oduwole, at ¶ 33. The Movie Maker file also originally contained embedded pictures and audio linked to play during the video. R 1060-61. The audio files had names including “machine G” and “gun_reload,” names that evoke the sound of gunfire. R 1061. The picture files had names including “Harvard,” “logo_GATech,” “logocapitalUCLA,” PENN_ST,” and “WashingtonState06cos_1,” clearly referencing well-known universities. R 1061-62. The Movie Maker file was created in May 2007 and was backed up on June 6, 2007. R 1007, 1063. Although defendant deleted the file sometime after June 6, 2007 and before his arrest, the file could have been transferred to online storage, email, or a different computer. R 1063; 1074-75. Defendant took even more steps. Five months before his arrest, he bought a Jennings semi-automatic handgun. R 645-47. His possession of this gun on campus was a violation of the law; nonetheless, he kept the gun with him. 720 ILCS 5/21-6(a). Just days before his arrest, defendant ordered four more guns: three .38 caliber semiautomatics– each of which hold 10 rounds of ammunition– and a Mac-10 which holds 30

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rounds of ammunition. R 670. Defendant was so eager to receive these guns that he called Mike Copeland (the firearms licensee through whom he was to take possession) almost daily between July 6, 2007 and July 12, 2007. R 676. Indeed, defendant’s impatience to obtain the guns caused Copeland to become concerned about defendant and phone ATF. R 679. Ammunition was found in defendant’s car and in his apartment. R 739, 803. Pictures of defendant holding a handgun and pictures of handguns and machine guns were also recovered from his computer. R 1046, 1074; P Ex. 114, 115, 116. A ski mask was found in defendant’s car, even though it was the middle of the summer. R 867. Defendant had conducted YouTube searches for the phrase “Virginia Tech Will Happen Again Somewhere.” R 1084. A person who threatens to execute “a murderous rampage similar to the VT [Virginia Tech] shooting” (P. Ex. 6) “is more likely to give the impression he is serious if he is serious– if he actually plans to carry out his threat and is able to do so.” Parr, 545 F.3d at 498 (emphasis in original). Even if any single act by defendant could be deemed insubstantial, together his combined steps – crafting the language of the threat, creating the Movie Maker file with the addition of his PayPal account information, sound effects and pictures, purchasing guns that would allow him to fire 70 shots without the need to reload, possessing guns in his university apartment, possessing ammunition in his car and apartment, keeping a ski mask in his car in the middle of the summer, searching YouTube for others interested in repeating Virginia Tech– were well beyond mere preparation. A dozen small steps will get as close to the end as one great stride. Indeed, the only thing missing from the

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completed crime was defendant’s posting on either a physical or online “bulletin board.” Only through fortuity was the threat intercepted before delivery. Evans, 779 A.2d at 894. The appellate court concluded that defendant’s acts did not place him in “dangerous proximity to success.” Oduwole, at ¶ 48. But the law of attempt has shifted from what remains to be done to what the actor has already done. Sweigart, at ¶ 28. The Model Penal Code standards enable a trier of fact to find a “substantial step” even where the commission of the crime still requires several major steps to be taken. Id. Thus, the scope of criminal liability has been expanded beyond that under the “dangerous proximity’ test.” Id. The appellate court’s error was compounded by application of this erroneous standard. Oduwole, at ¶ 48 (“The cited acts do not place the defendant in dangerous proximity to success.”). The jury, having heard all the evidence adduced at trial over several days, having had the opportunity to view the witnesses and hear the testimony, and having been properly instructed in the elements of attempt, concluded that defendant had taken a substantial step towards making a terrorist threat. Certainly, this jury’s conclusion was reasonable. Leger, 149 Ill. 2d at 388. The appellate court improperly reweighed the evidence presented to the jury, in contravention of Jackson v. Virginia, since a rational jury could have found the essential elements of the crime beyond a reasonable doubt. Jackson, 443 U.S. at 319. The error was exacerbated when the appellate court improperly applied the “dangerous proximity” test. Given the compelling purpose of legislation that is specifically designed to combat the evils of terrorism (720 ILCS 5/29D-5), this usurpation of the jury’s role and the resulting reversal of a conviction for attempting to -16-

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make a terrorist threat creates confusion that will undermine the Terrorism Act’s application in future prosecutions. Leave to appeal is thus warranted given the importance of the question presented. CONCLUSION For the foregoing reasons, the People request that this Court grant leave to appeal from the Fifth District’s judgment. April 10, 2013 Respectfully submitted, LISA MADIGAN Attorney General of Illinois 100 West Randolph Street, 12th Floor Chicago, Illinois 60601 HON. THOMAS D. GIBBONS State’s Attorney Madison County 157 North Main Street Edwardsville, Illinois 62025 PATRICK DELFINO, Director STEPHEN E. NORRIS, Deputy Director SHARON SHANAHAN, Staff Attorney State’s Attorneys Appellate Prosecutor Fifth District Office 730 East Illinois Highway 15, Suite 2 P. O. Box 2249 Mt. Vernon, Illinois 62864 (618) 244-2107 05dispos@ilsaap.org COUNSEL FOR PLAINTIFF-PETITIONER PEOPLE OF THE STATE OF ILLINOIS

OF COUNSEL

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CERTIFICATE OF COMPLIANCE I certify that this petition conforms to the requirements of Rule 315(c) and Rule 341(a) and (b). The length of this petition, excluding the pages containing the Rule 341(d) cover, the Rule 341(h)(1) statement of points and authorities, the Rule 341(c) certificate of compliance, the certificate of service, and those matters to be appended to the petition under Rule 342(a) is 17 pages. /s/Sharon Shanahan SHARON SHANAHAN

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No. IN THE SUPREME COURT OF ILLINOIS

PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Petitioner,

v.

OLUTOSIN ODUWOLE, Defendant-Respondent.

) ) ) ) ) ) ) ) ) ) ) ) )

On Petition for Leave to Appeal from the Appellate Court of Illinois, Fifth Judicial District No. 5-12-0039 There on Appeal from the Circuit Court of the Third Judicial Circuit, Madison County, Illinois No. 07-CF-1648 The Honorable Richard Tognarelli, Judge Presiding.

APPENDIX

No. 115869 04/10/2013

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2013 IL App (5th) 120039
N O T IC E D ecision filed 03/06/13. The text of this decision m ay be changed or corrected prior to the filing of a P e titio n fo r R ehearin g or th e

NO. 5-12-0039 IN THE APPELLATE COURT OF ILLINOIS FIFTH DISTRICT

disposition of the sam e.

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. OLUTOSIN ODUWOLE, Defendant-Appellant.

) ) ) ) ) ) ) ) )

Appeal from the Circuit Court of Madison County. No. 07-CF-1648 Honorable Richard L. Tognarelli, Judge, presiding.

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 ¶3 BACKGROUND 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 1
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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; 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, semiautomatic handgun; and e) purchased and was awaiting delivery of a Hi-Point, .380 caliber, semiautomatic handgun; and f) purchased and was awaiting delivery of a Hi-Point, .380 caliber, semiautomatic handgun; and g) purchased and was awaiting delivery of a Mac 10, .45 caliber, semiautomatic firearm; h) wrote a note 'send $2 to .... paypal account if this account doesn't reach

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$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

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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 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

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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. ¶ 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,

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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

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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 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. 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 onHe

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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 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.

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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 back seat, 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

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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 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

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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 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.

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¶ 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 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 ¶ 40 ANALYSIS 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

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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 5/29D10(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 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

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individual or group of individuals." ¶ 43 The offense of attempt is generally recognized as an inchoate offense because it is See 720 ILCS Ann. 5/8,

preliminary to another and more serious principal offense.

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

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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 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

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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

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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 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.

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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 ¶ 54 CONCLUSION 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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2013 IL App (5th) 120039 NO. 5-12-0039 IN THE APPELLATE COURT OF ILLINOIS FIFTH DISTRICT ___________________________________________________________________________________ ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Madison County. ) v. ) No. 07-CF-1648 ) OLUTOSIN ODUWOLE, ) Honorable ) Richard L. Tognarelli, Defendant-Appellant. ) Judge, presiding. ___________________________________________________________________________________ Opinion Filed : March 6, 2013 ___________________________________________________________________________________ Justices: Honorable Judy L. Cates, J. THE PEOPLE OF THE STATE OF ILLINOIS,

Honorable Melissa A. Chapman, J., and Honorable Bruce D. Stewart, J., Concur ___________________________________________________________________________________ Attorneys for Appellant Jeffrey Urdangen, Sarah Schrup, Bluhm Legal Clinic, Northwestern University School of Law, 375 East Chicago Avenue, Chicago, IL 60611; Steven E. Art, Loevy & Loevy, 312 North May Street, Suite 100, Chicago, IL 60607

___________________________________________________________________________________ Hon. Thomas D. Gibbons, State's Attorney, Madison County Courthouse, 157 North Main Street, Suite 402, Edwardsville, IL 62025, Patrick Delfino, Director, Stephen E. Norris, Deputy Director, Sharon Shanahan, Staff Attorney, Office of the State's Attorneys Appellate Prosecutor, 730 East Illinois Highway 15, Suite 2, P.O. Box 2249, Mt. Vernon, IL 62864 ___________________________________________________________________________________ Attorneys for Appellee

I2F SUBMITTED - 179991608 - SDSHANAHANJD - 04/10/2013 09:53:58 AM

DOCUMENT ACCEPTED ON: 04/10/2013 10:28:45 AM

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