Defendant’s conviction for telephone harassment was reversed where the evidence showed defendant was diagnosed with Tourette’s syndrome and obsessive compulsive tendencies, and although defendant made telephone calls to the victim, defendant’s testimony and the testimony of an expert witness established that the calls were the result of involuntary tics that defendant could not control without medication and were not defendant’s voluntary acts, and defendant’s failure to take his medication during the period when he made the calls to the victim was not a voluntary act sufficient to support a criminal conviction, rather not taking his medication was a nonaction, especially in the absence of a legal duty to take the medication.
Appeal from the Circuit Court of Whiteside County, No. 10-CF-133; Review the Hon. Stanley B. Steines, Judge, presiding. Judgment Reversed.
Michael J. Pelletier and Rachel Moran (argued), both of State Appellate Defender’s Office, of Chicago, for appellant.
Trish Joyce, State’s Attorney, of Morrison (Thomas D. Arado (argued), of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
Justices Holdridge and Lytton concurred in the judgment and opinion.
¶ 1 Defendant Robert Nelson, who is diagnosed with Tourette's syndrome and obsessive compulsive tendencies, was charged with four counts of the crime of telephone harassment. 720 ILCS 135/1-1 (West 2010). During his bench trial, defendant presented uncontroverted expert testimony that he made the phone calls as part of a complex "tic" due to his Tourette's, and that he had no ability to control these tics. The trial judge found defendant guilty and sentenced him to serve three concurrent six-year terms in the Department of Corrections. Defendant appeals, arguing that the evidence was insufficient to prove beyond a reasonable doubt that he performed a voluntary act sufficient to result in criminal liability or to prove that he had the mental state required to commit the offense. We reverse defendant's conviction.
¶ 2 FACTS
¶ 3 Defendant Robert Nelson has suffered from Tourette's syndrome with obsessive compulsive tendencies for 30 years. On the evening of March 27, 2010, Nelson made a telephone call to Lois Miller, an 84-year-old resident of Sterling, Illinois. Nelson and Miller had never met, and Nelson picked her name and number out of the phone book at random. When Miller answered the phone, Nelson said "Lois, what are you doing?" She did not recognize the voice on the phone, but asked him what he was doing. He said, "[O]h, I'm just sitting here pulling it off." He then begged for her to come see him. Miller figured the caller was referring to "a sexual thing." The call frightened and offended her, so she hung up the phone.
¶ 4 The morning of April 11, 2010, Nelson called Miller again. When she answered, she recognized the voice from the previous call. Nelson said that he "was Ted Long calling from Victoria's Secret." He said that Miller had "won a prize, " and "that the prize was a beautiful padded *** bra and panty set." Nelson asked for her underwear sizes so he could send the right-sized prize. Miller, again finding the call embarrassing and offensive, hung up.
¶ 5 Miller contacted the police department the following day and spoke to Officer Franklin Hopes. Officer Hopes advised her to set up a "trap and trace" to discover the caller's phone number if he happened to call again. Miller then contacted her phone provider to set up the trap and trace.
¶ 6 Nelson called Miller again on the evening of April 26, 2010. She recognized the voice as the same as the one on the previous two calls. Nelson asked Miller to go out on a date with him. She refused, saying, "I'm not interested in you, I don't even know you." She slammed the phone down, but he immediately called back and told her his name was Rob. He said, "Lois, I'm going to level with you. A friend of mine gave me your picture, and I thought you were the most beautiful woman in Sterling, and I want[ ] to get a date around May 7th or 8th." Miller stayed on the phone long enough to trace the number, then hung up.
¶ 7 The next day, Officer Hopes received information from Miller's phone provider regarding the number from which Miller was called on April 26. Officer Hopes looked up the number and discovered it belonged to Nelson. On April 29, 2010, Miller met with Officer Hopes at the police station. They called Nelson's number, and the man who answered identified himself as Nelson. Miller recognized Nelson's voice as that of the man who had called her on the four prior occasions. Officer Hopes asked Nelson to come to the police station, and when he did so, Officer Hopes arrested him. On April 30, 2010, the State charged Nelson with four counts of telephone harassment. 720 ILCS 135/1-1 (West 2010).
¶ 8 Nelson waived a jury trial, and the cause proceeded to a bench trial on December 29, 2010. Both Miller and Officer Hopes were called during the State's case-in-chief. Miller testified about the content of the phone calls she received and her reaction to the calls. Officer Hopes testified to the circumstances of Nelson's arrest. By stipulation, the State also admitted Nelson's telephone records, which showed he called Miller's phone number on March 27, April 11, and twice on April 26, 2010. The State then rested.
¶ 9 Nelson testified on his own behalf. At the time of trial, Nelson was 37 years old, lived with his parents, and was unemployed but collecting disability. He had been diagnosed with Tourette's syndrome and obsessive compulsive disorder (OCD) when he was around 10 years of age. One of the manifestations of these disorders was that he obsessed with certain actions, such as repetitively locking doors or using the telephone. He also experienced motor tics, over which he had no control. Some of his motor tics were simple, such as kicking his arms or legs. Others were complex, such as touching a hot stove or locking a door. Nelson experienced verbal tics as well, which he stated were also involuntary. One verbal tic was simple: Nelson would say "feet" repeatedly. Nelson described other vocal tics as complex. He stated that he would involuntarily utter obscenities and racial slurs, and that he would even speak full sentences as part of his complex vocal tics.
¶ 10 Nelson also testified that he experienced "premonitory urges, " related to his OCD, which are urges to perform a motor activity. He described "get[ting] something in my mind and I obsess over it and obsess, [and] I end up having to do it." If he did not perform the activity related to the premonitory urge, he would experience anxiety and panic, sometimes to the point of throwing up; Nelson said the urge "will eat at me and eat at me away until–until I do it. It's just–it's totally uncontrollable. I have no control over that." On cross-examination, the State pointed out that Nelson had not uttered any obscenities or racial slurs while in court, and Nelson stated that was because he was trying to control himself. When the ...