                                  Illinois Official Reports

                                          Appellate Court




                              People v. Nelson, 2013 IL App (3d) 120191




Appellate Court              THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                      ROBERT NELSON, Defendant-Appellant.


District & No.               Third District
                             Docket No. 3-12-0191


Filed                        December 19, 2013


Held                         Defendant’s conviction for telephone harassment was reversed where
(Note: This syllabus         the evidence showed defendant was diagnosed with Tourette’s
constitutes no part of the   syndrome and obsessive compulsive tendencies, and although
opinion of the court but     defendant made telephone calls to the victim, defendant’s testimony
has been prepared by the     and the testimony of an expert witness established that the calls were
Reporter of Decisions        the result of involuntary tics that defendant could not control without
for the convenience of       medication and were not defendant’s voluntary acts, and defendant’s
the reader.)                 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.




Decision Under               Appeal from the Circuit Court of Whiteside County, No. 10-CF-133;
Review                       the Hon. Stanley B. Steines, Judge, presiding.




Judgment                     Reversed.
     Counsel on                Michael J. Pelletier and Rachel Moran (argued), both of State
     Appeal                    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.



     Panel                     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


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     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. 1 Nelson described other vocal tics as complex. He stated that he


         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.
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       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 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–
                    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.
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                    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 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
       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

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       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.
       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, 226 Ill. 2d 92, 114 (2007). This standard
       applies both in jury trials and bench trials. Wheeler, 226 Ill. 2d at 114.
¶ 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 offense of telephone harassment. 720 ILCS 135/1-1 (West 2010). 2 That statute
       provides, in the relevant parts:
          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
       97-1108 (eff. Jan. 1, 2013) (adding 720 ILCS 5/26.5-2).
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               “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, 334 Ill.
       App. 3d 953, 956-57 (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, 356 Ill. App. 3d 500, 502 (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 statute. 720 ILCS 5/4-4
       (West 2010). Accordingly, subsection 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, 356 Ill. App. 3d at 502. The State is required to prove each
       element of the crime beyond a reasonable doubt. People v. Maggette, 195 Ill. 2d 336, 353
       (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, 71 Ill. 2d 551, 558 (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 conduct, cannot be criminally responsible for such involuntary
               acts.” Grant, 71 Ill. 2d at 558.
       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, 71 Ill.

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       2d at 558 (citing Ill. Ann. Stat., ch. 38, ¶ 4-1, Committee Comments–1961, 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, 71 Ill. 2d at 558. See also People v. Martino, 2012 IL App (2d) 101244, ¶ 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
       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, 339 Ill. App. 3d 483, 492 (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 obtain more. Despite the opportunity to question Nelson about his failure to take

                                                   -8-
       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, 153 Ill. 2d 218, 237
       (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 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.




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