Opinion filed December 19, 2013

______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2013 ______________________________________________________________________________

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS ) for the 14th Judicial Circuit, ) Whiteside County, Illinois Plaintiff-Appellee, ) ) Appeal No. 3-12-0191 v. ) Circuit No. 10-CF-133 ) ROBERT NELSON, ) ) The Honorable Stanley B. Steines, Defendant-Appellant. ) Judge, Presiding. ) ______________________________________________________________________________

JUSTICE McDADE delivered the judgment of the court, with opinion. Justices Holdridge and Lytton concurred in the judgment and opinion. _____________________________________________________________________________

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

2 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

3 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.1 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 State asked if Nelson could

control his tics, he responded, "Not really. I hold it in as long as I can and then if I have an

1 Throughout the trial, the court reporter transcribed many instances of Nelson saying feet,

both while other witnesses were testifying and while he was testifying himself. Nelson's

outbursts occurred with varying frequency throughout the trial, but they are reflected on

numerous pages of the trial transcript.

4 outburst, I have an outburst."

¶ 11 Nelson testified that he was taking medication for his OCD, and that it was helping,

although it did not completely eliminate his symptoms. He was on medication during the trial.

¶ 12 Nelson admitted that he made the three phone calls to Miller. He stated that he had never

met Miller, but just picked her name and number out of the phone book at random. Nelson

denied that he called her with the intent to offend, abuse, or harass her, but admitted during

cross-examination that he knew the statements he made would scare or offend an elderly woman.

He testified he felt awful after making the calls, and he knew it was not right to say what he said,

but he could not control his behavior. He also admitted that he never contacted his doctor to seek

help specifically about making the phone calls to Miller.

¶ 13 Doctor Martin Fields, who had been Nelson's treating psychiatrist since 2009, testified as

an expert in the field of psychiatry. He stated that Nelson's predominant diagnosis was for

Tourette's disorder with obsessive compulsive symptoms. Dr. Fields testified that Nelson was

prescribed a number of medications for his disorders: Luvox for his OCD symptoms, Risperdal

for his agitation, and Haldol for his tics.

¶ 14 Dr. Fields stated that Nelson, due to his Tourette's with obsessive compulsive symptoms,

experienced both simple and complex motor tics. Dr. Fields testified that a complex tic behavior

could involve making phone calls and speaking full sentences. He stated that this sort of tic

behavior was called coprolalia and it was commonly associated with Tourette's. Dr. Fields

described a "tic" in the following exchange:

"A. [Dr. Fields]: Yeah. A tic is an involuntary movement.

We think of it as an automatic movement –

5 THE DEFENDANT: Feet.

A. – where cognitive control is not possible and simple tics

like the one you are seeing right now are not under his voluntary

control –

THE DEFENDANT: Feet.

A. – and the complex tics that you're referring to are no

more under his control. It's not that he thinks about it and then can

say I – I shouldn't do this. The tic is part of an automatic stimulus

response motion that goes in one–one automatic motion from

thought to action without any way to stop it.

THE DEFENDANT: Feet.

A. We think of [it] almost like seizures. You can see that

right now. You–you see he is not capable of stopping the tic right

now.

THE DEFENDANT: Feet. Feet.

A. He is trying but he cannot."

Dr. Fields further testified that it was common for patients with Tourette's disorder to perform

complex actions under the influence of the tic, stating that the tics resulted in a "complex action

that occurs as a result of some kind of *** brain activation that we don't yet understand."

¶ 15 One action that Nelson performed frequently was making phone calls, and he was

obsessed with the phone. Dr. Fields opined that Nelson's behavior in calling Miller would be

part of a tic action called coprolalia related to his Tourette's. According to Dr. Fields, calling a

6 victim and saying "I'm just sitting here pulling one off" would be due to coprolalia, as would

calling her and saying that he was a representative of Victoria's Secret, or calling to ask for a

date. On cross-examination, Dr. Fields stated that, for Nelson, picking up the phone and dialing

it, or even looking up a person's phone number in the phone book, were due to uncontrollable

tics. While Dr. Fields was unaware whether Nelson previously said the exact statements he made

in the phone calls to Miller, the same type of coprolalia had occurred in the past with Nelson. He

also testified that it would be part of the coprolalia for Nelson to call the same person on multiple

occasions, saying that it was common for patients with Tourette's to repeat the same type of

action under similar circumstances, although he could not explain why.

¶ 16 According to Dr. Fields, Nelson was not capable of controlling his tics without

medication. When Nelson was taking his medications, Dr. Fields observed an extreme decrease

in the occurrence of Nelson's tics. He opined that while on his medication, Nelson was "really

being rehabilitated." After Nelson was arrested, however, he told Dr. Fields that he was not

taking his medication at the time he made the phone calls to Miller. The State asked whether it

was a volitional act on Nelson's part to stop taking his medication. Dr. Fields responded that he

thought Nelson ran out of his medication; while he had not checked his records to make sure,

according to Dr. Fields' recollection, Nelson ran out of medication and could not make it back to

get another prescription.

¶ 17 After Dr. Fields testified, the defense rested. The State did not present any rebuttal

evidence, and the court then heard closing arguments. The State argued the evidence was

sufficient to demonstrate that Nelson knowingly made the phone calls to Miller, and did so

knowing it was wrong. The State further argued that Nelson's disease did not constitute an

7 excuse for his criminal behavior; rather, he was similar to a drug addict who argued that he

should be excused because of his addiction. Finally, the State contended that Nelson

intentionally stopped taking his medicine, which constituted a volitional act on his part. The

defense argued that the State failed to prove beyond a reasonable doubt that Nelson intended to

harass or offend Miller, and also pointed out that the calls resulted from involuntary actions.

¶ 18 The trial court ruled that the State proved, beyond a reasonable doubt, that Nelson made

the calls in question to Miller and that the statements he made contained indecent, lewd,

harassing, or abusive language. The question for the court then became whether the nature of

Nelson's disability precluded a finding that he made the calls intentionally, or whether Nelson's

actions were "under his control." The court stated that it was "incredible for this court to

understand" that Nelson's behavior of choosing a number, dialing the phone, and making the

lewd statements was all part of a complex tic action. But, "[a]s incredible as that seems to the

Court, I do have to accept it because it came from the expert testimony of our expert***. I don't

have any expert from the State saying well that isn't part of a complex tic." However, the court

pointed out that despite the fact that his medication seemingly stopped the tics, Nelson stopped

taking his medication prior to making the calls. The court stated that Nelson "cannot rely upon

his disease as an excuse for his uncontrolled or involuntary acts," because Nelson knew that he

had problems with tics and making phone calls, but he did not take medication to prevent them.

It concluded that Nelson's "failure without excuse to remain on his treatment does not rise to the

level of a defense." Accordingly, the court found Nelson guilty of telephone harassment.

¶ 19 At sentencing, the court entered judgment on three counts of telephone harassment and

sentenced Nelson to three concurrent terms of six years in the Department of Corrections.

8 Nelson then filed a motion for a new trial, which the court denied. The court stated that even if

Nelson's actions were part of a complex tic, that fact did not constitute a defense because he

stopped taking his medication. The court compared Nelson's situation to an alcoholic who "can't

resist consuming alcohol consumes alcohol[,] and because of their diminished capacity while

under the influence of alcohol commits whatever offenses," such as battery, disorderly conduct,

or driving under the influence.

¶ 20 Nelson filed a timely notice of appeal.

¶ 21 ANALYSIS

¶ 22 In this appeal, Nelson has raised two arguments challenging his conviction. First, Nelson

argues that the evidence presented at trial does not support a finding, beyond a reasonable doubt,

that he performed voluntary acts when he made the phone calls to Miller. Second, he argues that

the evidence does not support the conclusion that he intended to offend or harass, abuse, or

threaten Miller by making the calls.

¶ 23 When a criminal defendant challenges the evidence as insufficient to support his

conviction, a reviewing court considers whether, viewing the evidence in the light most favorable

to the State, any rational trier of fact could have found the essential elements of the crime beyond

a reasonable doubt. People v. Wheeler,

(2007). This standard applies both in

jury trials and bench trials. Wheeler,

.

¶ 24 To evaluate Nelson's arguments, we must consider both the offense of telephone

harassment itself and the fundamental elements of criminal liability. Nelson was convicted under

sections 1-1(1) and 1-1(2) of the Harassing and Obscene Communications Act, which set out the

9 offense of telephone harassment. 720 ILCS 135/1-1 (West 2010).2 That statute provides, in the

relevant parts:

"Harassment by telephone is the use of telephone communication

for any of the following purposes:

(1) Making any comment, request, suggestion, or proposal

which is obscene, lewd, lascivious, filthy or indecent with an intent

to offend; or

(2) Making a telephone call, whether or not conversation

ensues, with intent to abuse, threaten or harass any person at the

called number ***." 720 ILCS 135/1-1 (West 2010).

¶ 25 As with common law crimes, in Illinois a criminal offense requires that the defendant

perform a prohibited act (the actus reus) with the prescribed mental state (mens rea), except for

certain absolute liability offenses, which require no mental state. See People v. Stiles,

(2002). For the crime of telephone harassment, subsection 1-1(1) prohibits

the act of using the telephone to make obscene, lewd, lascivious, filthy or indecent comments.

For subsection 1-1(2), the prohibited act is making the telephone call. People v. Karberg,

(2005). For each subsection, the required mental state is intent. A defendant

acts intentionally when his "conscious objective or purpose is to accomplish that result or engage

in that conduct" proscribed by the statue. 720 ILCS 5/4-4 (West 2010). Accordingly, subsection

2 In 2013, the Harassing and Obscene Communications Act was repealed, and the offense

of telephone harassment was recodified under article 26.5 of the Criminal Code of 2012. See

Pub. Act 097-1108 (eff. Jan. 1, 2013) (adding 720 ILCS 5/26.5-2).

10 1-1(1) requires that the defendant's conscious objective or purpose be to offend the recipient of

the call, while subsection 1-1(2) requires the defendant's conscious objective or purpose be to

abuse, threaten, or harass a person at the called number. See Karberg,

.

The State is required to prove each element of the crime beyond a reasonable doubt. People v.

Maggette,

(2001).

¶ 26 In addition to proving that the defendant performed the actus reus with the requisite mens

rea, the State must also prove beyond a reasonable doubt that the defendant engaged in a

voluntary act, for it is a "fundamental principle that a person is not criminally responsible for an

involuntary act." People v. Grant,

(1978). Thus, the Criminal Code of 1961

provides that "[a] material element of every offense is a voluntary act, which includes an

omission to perform a duty which the law imposes on the offender and which he is physically

capable of performing." 720 ILCS 5/4-1 (West 2010).

¶ 27 In People v. Grant, our supreme court discussed the voluntary act requirement in the

context of the defense of automatism. The court stated:

"Certain involuntary acts, i.e., those committed during a state of

automatism, occur as bodily movements which are not controlled

by the conscious mind. A person in a state of automatism lacks the

volition to control or prevent the involuntary acts. Such involuntary

acts may include those committed during convulsions, sleep,

unconsciousness, hypnosis or seizures. [Citations.] A cornerstone

of the defense of involuntary conduct is that a person, in a state of

automatism, who lacks the volition to control or prevent his

11 conduct, cannot be criminally responsible for such involuntary

acts." Grant,

.

The Grant court noted that the committee comments to section 4-1 of the Criminal Code of 1961

cited to the Model Penal Code's provision on the voluntary act requirement. Grant,

(citing Ill. Ann. Stat., ch. 38, ¶ 4-1, Committee Comments 1960, at 250 (Smith-Hurd 1972)

(citing Model Penal Code § 2.01, cmt. 3, at 121 (Tent. Draft No. 4 (1955))). The Model Penal

Code states that the following are not voluntary acts:

"(a) a reflex or convulsion;

(b) a bodily movement during unconsciousness or sleep;

(c) conduct during hypnosis or resulting from hypnotic suggestion;

(d) a bodily movement that otherwise is not a product of the

effort or determination of the actor, either conscious or habitual."

Model Penal Code § 2.01(2) (1962).

¶ 28 Thus, the law is clear that where a bodily movement is not the result of a defendant's

volition or control, it is an involuntary act for which the defendant cannot be held criminally

liable. Grant,

. See also People v. Martino,

, ¶ 15

(where police used a Taser on defendant, rendering him incapable of controlling his muscles, and

defendant fell on victim, the contact with victim was the result of an involuntary act, which could

not sustain an aggravated domestic battery conviction).

¶ 29 Turning to the case at bar, we agree with Nelson's argument that the uncontroverted

evidence presented at trial cannot support a conclusion that he acted voluntarily when he made

the phone calls to Miller. It is undisputed that Nelson actually made the calls in question. But

12 the expert testimony of Dr. Fields, along with Nelson's own testimony, demonstrates that the

phone calls were not acts done under Nelson's conscious control. Dr. Fields testified that patients

with Tourette's could perform complex actions as part of involuntary tics. He described Nelson's

tic as "an automatic stimulus response" where cognitive control is not possible. Dr. Fields

repeatedly stated that without medication, Nelson could not control the tics. Dr. Fields testified

that Nelson's behavior of selecting a number, dialing it, and saying lewd or offensive things were

all part of a complex tic resulting from his Tourette's. The State did not present a rebuttal expert

to testify that Nelson's actions were voluntary, or to otherwise refute any of Dr. Fields' testimony.

The trial court concluded that it had to adopt Dr. Fields' uncontroverted expert testimony that

Nelson did not act voluntarily in making the phone calls, which was proper. See Morus v.

Kapusta,

(2003) (holding that the trier of fact cannot disregard

uncontroverted expert testimony when this testimony pertains to medical issues "beyond the

understanding of a layperson") (internal quotation marks omitted). Thus, the evidence

demonstrates that Nelson acted pursuant to an involuntary tic when he made the calls in question.

¶ 30 The State argues that even if Nelson's acts of making the phone calls were pursuant to

involuntary tics, he could have prevented the tics by taking his medication. Echoing the rationale

of the trial court, the State argues that Nelson's failure to take his medication thus constituted a

voluntary act sufficient for criminal liability. We disagree.

¶ 31 It is clear that Nelson was not taking his medication at the time he made the phone calls

and therefore he could not control his tics. But there was no evidence presented that he

purposefully stopped taking his medication; the only evidence on this issue was the testimony of

Dr. Fields, whose uncertain recollection was that Nelson ran out of medication and was unable to

13 obtain more. Despite the opportunity to question Nelson about his failure to take medication at

the time the calls were made, the State neglected to do so. We do not think, based on this record,

a rational trier of fact could infer that Nelson voluntarily stopped taking his medication with the

intent to make harassing or offensive phone calls.

¶ 32 Accordingly, we conclude that Nelson's failure to take his medication constitutes an

omission, not an action. "Not taking his pills" was not an affirmative act. Rather, Nelson

engaged in nonaction—he simply did not take medication. The Criminal Code makes clear that

an omission satisfies the voluntary act requirement only if it involves "an omission to perform a

duty which the law imposes on the offender and which he is physically capable of performing."

720 ILCS 5/4-1 (West 2010). See also People v. Stanciel,

(1992). The State

did not present any evidence at trial, nor has it pointed to any legal authority here on appeal, to

demonstrate that Nelson had a legal duty to take his medication. We therefore hold that Nelson's

failure to take his pills does not constitute a voluntary act sufficient for criminal liability.

Because the State failed to prove the material element of a voluntary act, Nelson's conviction

must be reversed, and we need not address his mens rea argument.

¶ 33 We emphasize that our holding here is a narrow one: we conclude merely that, due to the

uncontroverted expert testimony of Dr. Fields, no rational trier of fact could have concluded that

Nelson performed voluntary acts in placing the offensive phone calls to Miller. We also

conclude that, on the basis of the specific evidence in this case, Nelson's failure to take

medication that could have alleviated his tics was not a voluntary act for the purposes of

violating the statute in question. Our holding should not be interpreted as stating that, as a matter

of law, acts performed pursuant to complex tics by persons with Tourette's disorder are always

14 involuntary—whether an act is voluntary should be determined based on the facts of each

particular case and the evidence presented at trial.

¶ 34 CONCLUSION

¶ 35 For the foregoing reasons, the judgment of the circuit court of Whiteside County is

reversed.

¶ 36 Reversed.

15