The opinion of the court was delivered by: Justice McNULTY
Appeal from the Circuit Court of Cook County.
Honorable Robert W. Bertucci, Judge Presiding.
Defendant Lise Olsen was charged with possession of incendiary devices, manufacturing incendiary devices, transporting incendiary devices, attempted arson, and unlawful use of weapons. A jury initially found her guilty of all the charges and the trial court sentenced her to a four-year prison term for manufacturing incendiary devices only. On appeal, defendant's conviction was reversed and the cause remanded for a new trial. People v. Olsen, No. 1-94-3385 (1995) (unpublished order under Supreme Court Rule 23). After a bench trial, defendant was convicted of unlawful use of weapons and sentenced to four years, time considered served. In the instant appeal, defendant contends that the State's evidence was insufficient to support a conviction for unlawful use of weapons and that the statute under which she was charged was unconstitutionally vague as applied to this case. We reverse defendant's conviction.
Chicago police officer Hans Heitman, an arson and explosives investigator, testified that on the morning of July 8, 1992, he received an assignment to go to 5200 North Ravenswood Avenue in Chicago. When he arrived, he saw 21 red and blue plastic containers hanging from both sides of a metal railroad trestle bridge which crossed Foster Avenue. Heitman stated that there was an advertisement for Keim Furs painted on the sides of the bridge and that the furrier was located one-half block west of the bridge.
Heitman testified that after he and other technicians removed the devices from the bridge, he saw that the containers were plastic Skippy Peanut Butter jars and that each jar contained gasoline and a separate green hobby fuse inserted into the top with a metal plate underneath. Several of the fuses had been lit but had not ignited. Only one of the fuses had ignited and that one device had burned.
Heitman testified that green hobby fuse is used for rocket model experimentation and firecrackers. He explained that the fuse is a cotton thread which is impregnated with a black powder-like substance, burns at a steady rate, and is used as a "timing sort of device." He further testified that after finding that one of the devices had previously burned, he had to assume that the devices were incendiary, meaning they would burn, ignite or explode. Heitman then put on protective clothing, removed the devices from the bridge and conducted X rays of them.
Heitman testified that the jars were filled approximately one- quarter with gasoline, and that the gasoline was poured out and only a small sample was retained by the police for analysis. The jars were also analyzed for fingerprints. Heitman testified that, in his opinion as an explosives technician, he would classify the devices primarily as incendiary. However, depending on the fuel-to-air mixture inside each device, they could also be classified as explosive. Heitman testified that no controlled experiments were conducted on the devices since gasoline is a dangerous substance and it is a well-known fact that gasoline burns.
Detective Robert Schatzel, assigned to the bomb and arson section of the Chicago police department, testified that on November 10, 1992, he received a call from Special Agent Allen Close of the Federal Bureau of Investigation. Close gave Schatzel four names of possible suspects regarding the devices found at the bridge. Schatzel subsequently learned that defendant's fingerprints matched those found on the devices and went to defendant's house the following morning, advised her of her Miranda rights and arrested her.
While at the police station, Schatzel again advised defendant of her Miranda rights and told her why she had been arrested. Accordingly to Detective Schatzel, defendant said that she made the 21 "[M]olotov cocktails" in her apartment without any help. She stated that she painted the containers, filled them with gasoline and then placed wicks in them. On July 3, 1992, she transported 10 of the devices in her car to the scene and hid them near the train trestle. The next day, she took the remaining 11 devices to the same area. She put 11 on the west side of the trestle and 10 on the east side. According to Detective Schatzel, defendant said that she lit the lead device, and as soon as it burst into flames, she left the scene immediately, thinking that all 21 of them fired simultaneously. Defendant told the officer that she did this to "make a demonstration against the cruelty of the killing of animals, for the taking of their furs and nothing else." She chose this particular trestle because she often drove down Foster Avenue when going to and from work and saw an advertisement for Keim Furs on either side of the trestle which said, "Welcome to fur country, Keim Furs." Defendant also told Schatzel that she had made a banner relating to "freedom of information" that she wanted to hang over the side of the bridge, but she had forgotten to bring it that day. Schatzel acknowledged on cross-examination that although he referred to the devices as Molotov cocktails during his testimony, defendant never used this term and in fact referred to the devices as lanterns.
The parties stipulated that Allen Osoba testified during defendant's first trial that the green hobby fuse used in the devices is also referred to as "green pyrotechnic fuse," is used by "model r[o]cketeers, pyrotechnics and firecracker make[rs]," and that there is "explosive gun powder" in the center of the fuse. Osoba also testified that he tested the gasoline taken from the jars and that 8 of the 20 jars contained over one-quarter ounce of gasoline. Finally, Osoba testified that "gasoline is a mixture of hydrocarbons which is extremely flammable and explosive."
Carl James Dahn, a consulting engineer, testified for the defense that he inspected the items recovered from the trestle and found that each of the containers had a separate green fuse or wick and the items were not wicked together. Each container had a separate white rope, and the ropes were not connected. Each container also had a metal plate suspended below the container by wires. Only one of the devices had burned.
Dahn set up an experiment with materials similar to those found on the trestle. In his first three tests, the hobby fuse went into the container, burned down into the liquid and then extinguished. On the fourth experiment, the hobby fuse burned the gasoline, melted the plastic all the way down into the pan and burned for about four or five minutes until it was out of gasoline. However, Dahn had to alter the design of the device in order to produce such results. Dahn testified that, based on his experimentation, the devices were more like lanterns, not explosives, Molotov cocktails or fire bombs. Dahn explained that a Molotov cocktail is a glass object containing a wick. When the wick is ignited, the object is thrown and gasoline spills over a wide area and catches fire. Dahn also testified that the green hobby fuse used by defendant was not an explosive, but it burns at a slow rate. Dahn testified on cross-examination that gasoline will burn or explode depending on the conditions in which the gasoline and its vapors are mixed. However, according to Dahn, the fuel-to-air ratio would not make the gasoline an explosive substance in these devices.
Defendant testified that in June 1992, she devised a plan to illuminate a banner with "festive lanterns." The banner would be suspended over the original billboard at the Foster Bridge. Defendant explained that as an animal rights activist, she believed that the Keim Furs advertisement, "save the environment, wear furs" was fraudulent because the fur industry was harmful to the environment. She intended to hang a banner saying "[f]reedom of information" on the bridge, illuminate it with lanterns, then photograph it and send the photograph to the media.
Defendant explained how she made the devices and testified that she had learned how to make the lanterns when she was a volunteer in Sudan, where there was no electricity. Defendant testified that she purchased the green hobby fuse used in the devices at a hobby store on the recommendation of the clerk at the store after defendant described the lanterns she intended to make. ...