petition for leave to appeal
TRANSCRIPT
-
7/28/2019 Petition for leave to appeal
1/39
No.
IN THE
SUPREME COURT OF ILLINOIS
PEOPLE OF THE STATE OF ILLINOIS, ) On Petition for Leave to Appeal
) from the Appellate Court of Illinois,
Plaintiff-Petitioner, ) Fifth Judicial District
) No. 5-12-0039
)
) There on Appeal from the Circuit
) Court of the Third Judicial Circuit,
v. ) Madison County, Illinois
) No. 07-CF-1648
)
OLUTOSIN ODUWOLE, ) The Honorable) Richard Tognarelli,
Defendant-Respondent. ) 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 PATRICK DELFINO, Director
States Attorney STEPHEN E. NORRIS, Deputy Director
Madison County SHARON SHANAHAN, Staff Attorney
157 North Main Street States Attorneys Appellate Prosecutor
Edwardsville, Illinois 62025 Fifth District Office
730 East Illinois Highway 15, Suite 2
P. O. Box 2249
Mt. Vernon, Illinois 62864
OF COUNSEL (618) 244-2107
COUNSEL FOR PLAINTIFF-PETITIONER
PEOPLE OF THE STATE OF ILLINOIS
UBMITTED - 179991608 - SDSHANAHANJD - 04/10/2013 09:53:58 AM
No. 115869
04/10/2013
DOCUMENT ACCEPTED ON: 04/10/2013 10:28:45 AM
115869
mailto:[email protected]:[email protected] -
7/28/2019 Petition for leave to appeal
2/39
-1-
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 jurys verdict finding defendant guilty
of attempt (making a terrorist threat).
The charge against defendant was based on a note in defendants 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
defendants 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 defendants 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 Courts 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.
UBMITTED - 179991608 - SDSHANAHANJD - 04/10/2013 09:53:58 AM DOCUMENT ACCEPTED ON: 04/10/2013 10:28:45 AM
115869
-
7/28/2019 Petition for leave to appeal
3/39
-2-
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 inJackson 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 factfinders 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 jurys role
as factfinder, applying an outdated standard for attempt, and reversing defendants
conviction for attempting to make a terrorist threat, the appellate court has created
confusion in the application of the Terrorism Act, thus warranting this Courts review.
UBMITTED - 179991608 - SDSHANAHANJD - 04/10/2013 09:53:58 AM DOCUMENT ACCEPTED ON: 04/10/2013 10:28:45 AM
115869
-
7/28/2019 Petition for leave to appeal
4/39
-3-
STATEMENT REGARDING JUDGMENT AND REHEARING
On March 6, 2013, the appellate court rendered its opinion, reversing the jurys
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 jurys role as factfinder, applying an outdated standard for attempt,
and reversing defendants conviction for attempting to make a terrorist threat, the appellate
court has created confusion in the application of the Terrorism Act, thus warranting this
Courts 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 doesnt 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 UniversityEdwardsville (SIU-
E); (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
HiPoint .380 caliber, semiautomatic handguns and a Mac 10 .45 caliber, semiautomatic
firearm; and (5) obtained a PayPal Account. C 1, 23.
UBMITTED - 179991608 - SDSHANAHANJD - 04/10/2013 09:53:58 AM DOCUMENT ACCEPTED ON: 04/10/2013 10:28:45 AM
115869
-
7/28/2019 Petition for leave to appeal
5/39
-4-
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 States 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 10.45caliber pistol and three HiPoint CF .380caliber 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 HiPoint
.380s have a 10round magazine and the Mac 10 is a .45caliber semiautomatic with a
30round 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,
UBMITTED - 179991608 - SDSHANAHANJD - 04/10/2013 09:53:58 AM DOCUMENT ACCEPTED ON: 04/10/2013 10:28:45 AM
115869
-
7/28/2019 Petition for leave to appeal
6/39
-5-
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 defendants 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
owners property and protecting the police department from an owners 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
UBMITTED - 179991608 - SDSHANAHANJD - 04/10/2013 09:53:58 AM DOCUMENT ACCEPTED ON: 04/10/2013 10:28:45 AM
115869
-
7/28/2019 Petition for leave to appeal
7/39
-6-
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,
Im single Im not wit her, but shegott 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 defendants
on-campus apartment and arrested him. R 748, 775. A search of the apartment revealed a
loaded .25caliber pistol, a .25caliber 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
UBMITTED - 179991608 - SDSHANAHANJD - 04/10/2013 09:53:58 AM DOCUMENT ACCEPTED ON: 04/10/2013 10:28:45 AM
115869
-
7/28/2019 Petition for leave to appeal
8/39
-7-
checkbook. R 790-807. Most of the notebook entries appeared to be rap lyrics and
writings related to defendants aspiring rap career. R 821. A more complete search of
defendants 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 defendants fraternity brothers, students, and many of defendants instructors,
none of whom expressed any concern about defendant. R 898. Weissenborn considered
defendants Internet purchase of the four handguns, defendants possession of the handgun
in his on-campus apartment, and the piece of paper found in defendants 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 defendants vehicle to represent creative writing, given that the
Virginia Tech incident occurred three months prior and given his knowledge of
defendants 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
defendants 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 defendants 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
UBMITTED - 179991608 - SDSHANAHANJD - 04/10/2013 09:53:58 AM DOCUMENT ACCEPTED ON: 04/10/2013 10:28:45 AM
115869
-
7/28/2019 Petition for leave to appeal
9/39
The laptop computer belonged to Alexandria Scherff, defendants former1
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-
defendants apartment. R 1039. When he checked the laptops hard drive, he located1
three digital photographs of defendant holding a small .380caliber 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 [email protected] if you dont 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.
UBMITTED - 179991608 - SDSHANAHANJD - 04/10/2013 09:53:58 AM DOCUMENT ACCEPTED ON: 04/10/2013 10:28:45 AM
115869
mailto:[email protected]://www.paypal.com/http://www.paypal.com/mailto:[email protected] -
7/28/2019 Petition for leave to appeal
10/39
-9-
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 CaliforniaIrvine, and an expert in the area of rap
music. R 1050-52. Dr. Kubrin reviewed the content of the paper seized from defendants
vehicle and numerous pages in defendants 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
UBMITTED - 179991608 - SDSHANAHANJD - 04/10/2013 09:53:58 AM DOCUMENT ACCEPTED ON: 04/10/2013 10:28:45 AM
115869
-
7/28/2019 Petition for leave to appeal
11/39
-10-
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 jurys
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 defendants 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 defendants writings abhorrent, it concluded that these preparatory
activities did not place the defendant in dangerous proximity to success. Id. at 48,
49.
UBMITTED - 179991608 - SDSHANAHANJD - 04/10/2013 09:53:58 AM DOCUMENT ACCEPTED ON: 04/10/2013 10:28:45 AM
115869
-
7/28/2019 Petition for leave to appeal
12/39
-11-
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 (4 Dist. 2000). That moreth
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
UBMITTED - 179991608 - SDSHANAHANJD - 04/10/2013 09:53:58 AM DOCUMENT ACCEPTED ON: 04/10/2013 10:28:45 AM
115869
-
7/28/2019 Petition for leave to appeal
13/39
-12-
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 (2 Dist. 1989). Thed
incomplete effort is not equivalent to the completed effort. Id. Blacks Law Dictionary
defines an inchoate offense as Partially completed or imperfectly formed; just begun.
BLACKS LAW DICTIONARY (9th ed. 2009) (Westlaw). As an example of an inchoate
offense, Blacks gives the following illustration:
[T]he performance of a criminal attempt must always have been reachedbefore 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.
BLACKS 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
UBMITTED - 179991608 - SDSHANAHANJD - 04/10/2013 09:53:58 AM DOCUMENT ACCEPTED ON: 04/10/2013 10:28:45 AM
115869
-
7/28/2019 Petition for leave to appeal
14/39
-13-
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
defendants car stated:
Send $2 to....paypal account if this amount doesnt 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 (7 Cir. 2008). And if ath
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 defendants
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
UBMITTED - 179991608 - SDSHANAHANJD - 04/10/2013 09:53:58 AM DOCUMENT ACCEPTED ON: 04/10/2013 10:28:45 AM
115869
-
7/28/2019 Petition for leave to appeal
15/39
-14-
unless... The viewers of this collectively deposit a total of $200,000 in the
following paypal [email protected] if you dont 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 defendants 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 semi-
automatics each of which hold 10 rounds of ammunition and a Mac-10 which holds 30
UBMITTED - 179991608 - SDSHANAHANJD - 04/10/2013 09:53:58 AM DOCUMENT ACCEPTED ON: 04/10/2013 10:28:45 AM
115869
mailto:[email protected]://www.paypal.com/http://www.paypal.com/mailto:[email protected] -
7/28/2019 Petition for leave to appeal
16/39
-15-
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, defendants
impatience to obtain the guns caused Copeland to become concerned about defendant and
phone ATF. R 679. Ammunition was found in defendants 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 defendants 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
UBMITTED - 179991608 - SDSHANAHANJD - 04/10/2013 09:53:58 AM DOCUMENT ACCEPTED ON: 04/10/2013 10:28:45 AM
115869
-
7/28/2019 Petition for leave to appeal
17/39
-16-
completed crime was defendants 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 defendants 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 courts 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 jurys conclusion was
reasonable. Leger, 149 Ill. 2d at 388. The appellate court improperly reweighed the
evidence presented to the jury, in contravention ofJackson 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 jurys role and the resulting reversal of a conviction for attempting to
UBMITTED - 179991608 - SDSHANAHANJD - 04/10/2013 09:53:58 AM DOCUMENT ACCEPTED ON: 04/10/2013 10:28:45 AM
115869
-
7/28/2019 Petition for leave to appeal
18/39
-17-
make a terrorist threat creates confusion that will undermine the Terrorism Acts
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 Districts judgment.
April 10, 2013 Respectfully submitted,
LISA MADIGAN
Attorney General of Illinois
100 West Randolph Street, 12th FloorChicago, Illinois 60601
HON. THOMAS D. GIBBONS PATRICK DELFINO, Director
States Attorney STEPHEN E. NORRIS, Deputy Director
Madison County SHARON SHANAHAN, Staff Attorney
157 North Main Street States Attorneys Appellate Prosecutor
Edwardsville, Illinois 62025 Fifth District Office
730 East Illinois Highway 15, Suite 2
P. O. Box 2249
Mt. Vernon, Illinois 62864
OF COUNSEL (618) [email protected]
COUNSEL FOR PLAINTIFF-PETITIONER
PEOPLE OF THE STATE OF ILLINOIS
UBMITTED - 179991608 - SDSHANAHANJD - 04/10/2013 09:53:58 AM DOCUMENT ACCEPTED ON: 04/10/2013 10:28:45 AM
115869
mailto:[email protected]:[email protected] -
7/28/2019 Petition for leave to appeal
19/39
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 petitionunder Rule 342(a) is 17 pages.
/s/Sharon Shanahan
SHARON SHANAHAN
UBMITTED - 179991608 - SDSHANAHANJD - 04/10/2013 09:53:58 AM DOCUMENT ACCEPTED ON: 04/10/2013 10:28:45 AM
115869
-
7/28/2019 Petition for leave to appeal
20/39
No.
IN THE
SUPREME COURT OF ILLINOIS
PEOPLE OF THE STATE OF ILLINOIS, ) On Petition for Leave to Appeal
) from the Appellate Court of Illinois,
Plaintiff-Petitioner, ) Fifth Judicial District
) No. 5-12-0039
)
) There on Appeal from the Circuit
) Court of the Third Judicial Circuit,
v. ) Madison County, Illinois
) No. 07-CF-1648
)
OLUTOSIN ODUWOLE, ) The Honorable) Richard Tognarelli,
Defendant-Respondent. ) Judge Presiding.
APPENDIX
UBMITTED - 179991608 - SDSHANAHANJD - 04/10/2013 09:53:58 AM
No. 115869
04/10/2013
DOCUMENT ACCEPTED ON: 04/10/2013 10:28:45 AM
115869
-
7/28/2019 Petition for leave to appeal
21/39
1
NOTICE
Decision filed 03/06/13. The text of
this decision may be changed or
corrected prior to the filing of a
Peti t ion for Rehearing or the
disposition of the same.
2013 IL App (5th) 120039
NO. 5-12-0039
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) 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.
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
UBMITTED - 179991608 - SDSHANAHANJD - 04/10/2013 09:53:58 AM DOCUMENT ACCEPTED ON: 04/10/2013 10:28:45 AM
115869
-
7/28/2019 Petition for leave to appeal
22/39
2
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, 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
UBMITTED - 179991608 - SDSHANAHANJD - 04/10/2013 09:53:58 AM DOCUMENT ACCEPTED ON: 04/10/2013 10:28:45 AM
115869
-
7/28/2019 Petition for leave to appeal
23/39
3
$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
UBMITTED - 179991608 - SDSHANAHANJD - 04/10/2013 09:53:58 AM DOCUMENT ACCEPTED ON: 04/10/2013 10:28:45 AM
115869
-
7/28/2019 Petition for leave to appeal
24/39
4
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 wi th 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
UBMITTED - 179991608 - SDSHANAHANJD - 04/10/2013 09:53:58 AM DOCUMENT ACCEPTED ON: 04/10/2013 10:28:45 AM
115869
-
7/28/2019 Petition for leave to appeal
25/39
5
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 lis ted 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,
UBMITTED - 179991608 - SDSHANAHANJD - 04/10/2013 09:53:58 AM DOCUMENT ACCEPTED ON: 04/10/2013 10:28:45 AM
115869
-
7/28/2019 Petition for leave to appeal
26/39
6
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
UBMITTED - 179991608 - SDSHANAHANJD - 04/10/2013 09:53:58 AM DOCUMENT ACCEPTED ON: 04/10/2013 10:28:45 AM
115869
-
7/28/2019 Petition for leave to appeal
27/39
7
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 shegott a throat deeper than a Sword Swallower/
glock to the head of
SEND 2 to ... paypal accountif this account doesn't reach $50,000 in the next7 days then a murderous rampage similar to theVT shooting will occur at another prestigioushighly 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-
UBMITTED - 179991608 - SDSHANAHANJD - 04/10/2013 09:53:58 AM DOCUMENT ACCEPTED ON: 04/10/2013 10:28:45 AM
115869
-
7/28/2019 Petition for leave to appeal
28/39
8
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-cal iber 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.
UBMITTED - 179991608 - SDSHANAHANJD - 04/10/2013 09:53:58 AM DOCUMENT ACCEPTED ON: 04/10/2013 10:28:45 AM
115869
-
7/28/2019 Petition for leave to appeal
29/39
9
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
UBMITTED - 179991608 - SDSHANAHANJD - 04/10/2013 09:53:58 AM DOCUMENT ACCEPTED ON: 04/10/2013 10:28:45 AM
115869
-
7/28/2019 Petition for leave to appeal
30/39
10
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
UBMITTED - 179991608 - SDSHANAHANJD - 04/10/2013 09:53:58 AM DOCUMENT ACCEPTED ON: 04/10/2013 10:28:45 AM
115869
-
7/28/2019 Petition for leave to appeal
31/39
11
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.
UBMITTED - 179991608 - SDSHANAHANJD - 04/10/2013 09:53:58 AM DOCUMENT ACCEPTED ON: 04/10/2013 10:28:45 AM
115869
-
7/28/2019 Petition for leave to appeal
32/39
12
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 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
UBMITTED - 179991608 - SDSHANAHANJD - 04/10/2013 09:53:58 AM DOCUMENT ACCEPTED ON: 04/10/2013 10:28:45 AM
115869
-
7/28/2019 Petition for leave to appeal
33/39
13
must determine whether, after viewing the evidence in a light most favorable to the
prosecution, any rational trie r 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
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
UBMITTED - 179991608 - SDSHANAHANJD - 04/10/2013 09:53:58 AM DOCUMENT ACCEPTED ON: 04/10/2013 10:28:45 AM
115869
-
7/28/2019 Petition for leave to appeal
34/39
14
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. 5/8,
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
UBMITTED - 179991608 - SDSHANAHANJD - 04/10/2013 09:53:58 AM DOCUMENT ACCEPTED ON: 04/10/2013 10:28:45 AM
115869
-
7/28/2019 Petition for leave to appeal
35/39
15
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
UBMITTED - 179991608 - SDSHANAHANJD - 04/10/2013 09:53:58 AM DOCUMENT ACCEPTED ON: 04/10/2013 10:28:45 AM
115869
-
7/28/2019 Petition for leave to appeal
36/39
16
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
UBMITTED - 179991608 - SDSHANAHANJD - 04/10/2013 09:53:58 AM DOCUMENT ACCEPTED ON: 04/10/2013 10:28:45 AM
115869
-
7/28/2019 Petition for leave to appeal
37/39
17
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.
UBMITTED - 179991608 - SDSHANAHANJD - 04/10/2013 09:53:58 AM DOCUMENT ACCEPTED ON: 04/10/2013 10:28:45 AM
115869
-
7/28/2019 Petition for leave to appeal
38/39
18
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.
UBMITTED - 179991608 - SDSHANAHANJD - 04/10/2013 09:53:58 AM DOCUMENT ACCEPTED ON: 04/10/2013 10:28:45 AM
115869
-
7/28/2019 Petition for leave to appeal
39/39
2013 IL App (5th) 120039
NO. 5-12-0039
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT___________________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) 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.
Honorable Melissa A. Chapman, J., andHonorable Bruce D. Stewart, J.,
Concur___________________________________________________________________________________
Attorneys Jeffrey Urdangen, Sarah Schrup, Bluhm Legal Clinic, Northwestern Universityfor School of Law, 375 East Chicago Avenue, Chicago, IL 60611; Steven E. Art,Appellant Loevy & Loevy, 312 North May Street, Suite 100, Chicago, IL 60607
___________________________________________________________________________________
Attorneys Hon. Thomas D. Gibbons, State's Attorney, Madison County Courthouse, 157 Northfor Main Street, Suite 402, Edwardsville, IL 62025, Patrick Delfino, Director, StephenAppellee 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. Box2249, Mt. Vernon, IL 62864
___________________________________________________________________________________
115869