2021 IL App (2d) 180554-U No. 2-18-0554 Order filed May 5, 2021
NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT ______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Lake County. ) Plaintiff-Appellee, ) ) v. ) No. 14-CF-2588 ) DANIEL B. PEDERSON, ) Honorable ) Mark L. Levitt, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________
JUSTICE BRENNAN delivered the judgment of the court. Justice Jorgensen concurred in the judgment. Justice McLaren dissented.
ORDER
¶1 Held: Though the trial court’s admonishments to the jury did not comply with Rule 431(b), the error was not plain error that would excuse defendant’s forfeiture of the issue, as the evidence at trial on the charge of making a terrorist threat was not closely balanced.
¶2 After a jury trial, defendant, Daniel B. Pederson, was convicted of making a terrorist threat
(720 ILCS 5/29D-20(a) (West 2014)) and sentenced to six years in prison. On appeal, he contends
that the trial court committed plain error by failing to question prospective jurors in compliance
with Illinois Supreme Court Rule 431(b) (eff. July 1, 2012). We affirm. 2021 IL App (2d) 180554-U
¶3 I. BACKGROUND
¶4 The charge against defendant alleged that, on September 12, 2014, with the intent to
intimidate or coerce a significant portion of a civilian population, he knowingly threatened to cause
the commission of a terrorist act. Specifically, he placed a phone call to a government office
stating that he would kill Gurnee police officers and “light up” the Gurnee police station and the
Lake County courthouse in Waukegan.
¶5 At the start of jury selection, the trial judge provided the following admonishments to all
the prospective jurors:
“The first series of questions that [sic] I am going to ask you as a group. That means
all of you in this room. Although I am going to ask you as a group, I want to you [sic]
answer individually if you each understand and accept the following fundamental
principles of our legal testimony [sic]. If you do, please indicate so by raising your hand.
Do you each understand and accept that a person accused of a crime is presumed to
be innocent of a charge against him? Record should reflect all raised their hands.
Do each [sic] understand and accept that the presumption stays with the Defendant
throughout the trial and is not overcome unless from all of the evidence you believe the
State proved his guilt beyond a reasonable doubt? Record should reflect all raised their
hands.
Do you each understand and accept that the Defendant does not have to prove his
innocence? Again, all raised their hands.
And do you each understand and accept the Defendant is not have to [sic] present
any evidence in his own behalf? Again, all raise [sic] their hands.
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Do you understand that what that means the Defendant [sic] does not have to testify
if he does not wish to? Again, all raised their hands.
And if he does not testify, do you understand that you must not consider that fact
in any way arriving [sic] at your verdict? Again, all raised their hands.
And do you understand that if he does testify you should judge his testimony the
same way you would any other witness? Again, all raised their hands.
Thank you.”
¶6 At trial, the State’s first witness, Ryan Bereczky, testified that he was defendant’s long-
time friend. In the past they had played hockey together and lived together in Gurnee in 2009 and
2010. Even when they no longer lived together, they continued to communicate monthly by both
text and phone. On September 12, 2014, a Lake County sheriff’s deputy visited Bereczky and
asked him whether he recognized the phone number (815) xxx-xxxx. Bereczky told the deputy
that he recognized the number as belonging to defendant. Indeed, Bereczky testified that, earlier
that day, he had communicated with the defendant via text message at that number. The deputy
played for Bereczky a recording of a call that was admitted at trial as People’s exhibit No. 1.
Bereczky told the deputy that he recognized the caller to be defendant. At trial, Bereczky also
testified that he had listened to the recording again on the morning of his testimony, and confirmed
the voice was that of defendant whom he also identified in open court.
¶7 The parties stipulated as follows. A child-support case against defendant existed in Lake
County, Illinois. Defendant had an Illinois driver’s license. On January 12, 2014, the Illinois
Department of Health Care and Family Services (Department) caused the license to be suspended
because defendant owed past-due child support. The suspension was still in effect on September
12, 2014. On September 12, 2014, defendant resided in southern California.
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¶8 The State then called Brian Parsano. On direct examination, he testified that, on September
12, 2014, he worked in the Department’s customer-service call center in Springfield. The center
processed incoming calls only. All calls were recorded. Each caller was given an identifying
number. The center did not receive the caller’s phone number. Calls were routed to different lines
depending on the subject matter, such as driver’s licenses.
¶9 Parsano testified that, at 11:41 a.m. on September 12, 2014, he received a call. The State
played People’s exhibit No. 1, which Parsano identified as the call. It lasted 37 seconds and went
as follows:
“[Parsano]: Good morning, thanks for calling the Child Support Customer Service Call
Center. This call is being recorded for quality assurance, my name is Brian, how can I
assist you today in regards to your driver’s license?
[Caller]: Ah, I just want to let you guys know, I’m coming. I’m fucking killing people.
I’m killing the cops that arrested me. You guys have no idea what’s about to happen. You
guys fucking—
[Parsano]: You do realize this call is being recorded? Is there something I can assist you
with?
[Caller]: Come and get me. Come and get me. Come and get me. Come and fucking get
me. I’m so—I’m lighting up the Gurnee Police Department and the Waukegan courthouse.
Come and get me.”
¶ 10 Parsano testified that, at this point, the caller hung up. The caller never identified himself.
Parsano kept the line open and reported the incident to his supervisor. Later, he played the call for
the sheriff’s office and transmitted thereto a recording of the call.
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¶ 11 Parsano testified that his question “You do realize this call is being recorded?” reflected
his practice of trying to lower the emotional level of conversations with angry callers. He
explained: “[M]ost people [who] call are not very happy in regards to the administrative process
that is being taken. 90 percent of the time I can get the caller to recant what they had stated.”
¶ 12 Parsano testified on cross-examination that, if the caller’s phone recorded the call as lasting
two minutes and six seconds, that duration could have included time preceding the conversation,
when the caller was on hold or moving through the automated system. Parsano routinely tried to
deescalate angry calls and had managed to deescalate some threatening calls. However, because
defendant abruptly hung up, there was no chance to deescalate the situation or obtain a recantation.
¶ 13 Jeff Lowery testified on direct examination that, on September 12, 2014, he had been a
deputy sheriff for 37 years and was the sergeant in charge of Lake County sheriff department’s
court security division. The division’s offices were located on the courthouse campus. Lowery
estimated that each day, at least 1000 people entered and exited the courthouse building. At about
11:55 a.m. on September 12, 2014, a worker from the Department called and told Lowery that he
had received notice of a bomb being planted in the circuit clerk’s office. Lowery had the clerk’s
office and the three floors above it evacuated and searched. After concluding that the area was
“clear,” Lowery allowed people back into the building. He had considered the threat as reported
to be viable and not a prank.
¶ 14 Lowery testified that, after returning to his desk, he called the Department. A
representative played a tape of the call and e-mailed a copy to Lowery. Lowery determined that
the call did not make a bomb threat, but testified that, based on his experience in law enforcement,
“ ‘lighting up’ ” is a common expression for “[s]hooting.” Thus, after hearing the recording, he
took further action. Lowery instantly heightened the readiness level for each entrance to the
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courthouse. He assigned the Court Emergency Response Team (CERT) to guard each entrance to
the courthouse armed with rifles because it was unknown who or when the threat might transpire.
CERT members did not ordinarily carry riles in the courthouse, except where the threat level was
believed to be serious. Security staffing was also increased in the hallways. He testified that, in
his nine years of working courthouse security, he had not handled a threat to the courthouse of this
nature.
¶ 15 Lowery acknowledged on cross-examination that the recorded call made no mention of a
bomb or the circuit clerk’s office and that the Department worker’s description of defendant’s call
had been wrong. The search revealed no evidence of a bomb.
¶ 16 The State rested. Defendant’s case consisted of the following stipulation. On September
12, 2014, two calls were made from 815-xxx-xxxx to the call center. The first was dialed at 11:37
a.m. and its duration was not recorded. The second call was dialed at 11:41 a.m. and was recorded
as lasting two minutes and six seconds.
¶ 17 The jury found defendant guilty. He moved for a new trial. The trial court then allowed
defendant to proceed pro se, and he filed a posttrial motion that added new claims of error. At no
point did defendant claim error in regard to Rule 431(b) requirements. The court denied
defendant’s motion and sentenced him to six years’ imprisonment. He timely appealed.
¶ 18 II. ANALYSIS
¶ 19 Defendant raises one claim of error: that the trial court’s admonishments to the prospective
jurors did not conform to Rule 431(b), which, as pertinent here, provides:
“The court shall ask each potential juror, individually or in a group, whether that juror
understands and accepts the following principles: (1) that the defendant is presumed
innocent of the charge(s) against him or her; (2) that before a defendant can be convicted
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the State must prove the defendant guilty beyond a reasonable doubt; (3) that the defendant
is not required to offer any evidence on his or her own behalf; and (4) that if a defendant
does not testify it cannot be held against him or her; however, no inquiry of a prospective
juror shall be made into the defendant’s decision not to testify when the defendant objects.”
(Emphasis added.) Ill. S. Ct. R. 431(b) (eff. July 1, 2012).
¶ 20 Defendant notes that the court asked the prospective jurors whether they understood and
accepted the first three principles but asked only whether they understood the fourth principle, that
a defendant’s failure to testify must not be held against him or her. Defendant notes that the court
was affirmatively obligated to provide all of the enumerated admonishments. See People v.
Schaefer, 398 Ill. App. 3d 963, 967 (2010). Thus, he reasons, the court erred.
¶ 21 Defendant acknowledges that he failed to preserve this issue for review, as he neither
objected at the time nor raised the error in his posttrial motion. See id. at 966. However, he
invokes the plain-error doctrine, which allows us to consider an unpreserved error that is clear or
obvious when (1) the evidence was closely balanced or (2) the error was so serious that it affected
the fairness of the trial, regardless of how close the evidence was. People v. Piatkowski, 225 Ill.
2d 551, 565 (2007). The plain-error doctrine does not operate as a “general savings clause.”
People v. Johnson, 238 Ill. 2d 478, 484 (2010). Rather, the doctrine is construed as a “narrow and
limited exception” to the typical rule that unpreserved claims are forfeited. Id. For a Rule 431(b)
violation to satisfy the second prong, the defendant must produce evidence that the violation
produced a biased jury. People v. Sebby, 2017 IL 119445, ¶ 52. Defendant does not contend that
he can satisfy the second prong but maintains that the evidence was closely balanced such that the
first plain-error prong applies. The State concedes that the trial court erred, but disputes that the
evidence was not closely balanced. We agree with the State.
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¶ 22 The first step in a plain-error analysis is to determine whether clear or obvious error
occurred. Id. ¶ 49. Rule 431(b) required the trial court to inquire whether the prospective jurors
“understood and accepted” that, if a defendant does not testify, it cannot be held against him or
her. (Emphasis added.) Ill. S. Ct. R. 431(b) (eff. July 1, 2012). The trial court inquired only
whether the prospective jurors understood that principle. The court clearly erred.
¶ 23 We turn to the second step in the analysis: whether the evidence of guilt was so closely
balanced “that the error alone severely threatened to tip the scales of justice" against the defendant.
Sebby, 2017 IL 119445, ¶ 51. The defendant bears the burden of persuasion on the question of
whether the evidence was close enough to meet this standard. People v. Choate, 2018 IL App
(5th) 150087, ¶ 52 (citing People v. Thompson, 238 Ill. 2d 598, 613 (2010); Piatkowski, 225 Ill.
2d at 567)). “In determining whether the evidence adduced at trial was close, a reviewing court
must evaluate the totality of the evidence and conduct a qualitative, commonsense assessment of
it within the context of the case.” Sebby, 2017 IL 119445, ¶ 53. In so doing, a reviewing court’s
inquiry “involves an assessment of the evidence on the elements of the charged offense or offenses,
along with any evidence regarding the witnesses’ credibility.” Id. Considering whether evidence
is closely balanced does not involve the sufficiency of close evidence but, rather, the closeness of
sufficient evidence. Id. ¶ 60.
¶ 24 In determining whether defendant met his burden of demonstrating that the evidence was
closely balanced, we note that the material evidence was relatively straightforward and did not
turn on credibility determinations. Indeed, the threats at issue, with their accompanying tone, were
recorded:
“I’m coming. I’m fucking killing people. I’m killing the cops that arrested me.
You guys have no idea what’s about to happen. ***. Come and get me. Come and get
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me. Come and get me. Come and fucking get me. I’m so – I’m lighting up the Gurnee
Police Department and the Waukegan courthouse. Come and get me.”
¶ 25 Defendant’s friend and former roommate, Bereczky, testified that the threatening voice on
the recording was that of defendant and that the phone number from which the call was made was
the same number Bereczky regularly used to communicate with defendant. While the dissent
suggests that the evidence that defendant made the call was closely balanced, we note that there
was absolutely no contrary evidence presented on this issue. Bereczky’s testimony in this regard
was unimpeached and uncontradicted. Moreover, the actions of Parsano, Lowery, and the people
under Lowery’s command were not in dispute. Our role as the reviewing court in determining
whether defendant met his burden of establishing first-prong plain error is to make a commonsense
assessment of whether this evidence was close vis-à-vis the elements of the offense. See id. ¶ 53.
¶ 26 Defendant was convicted of making a terrorist threat under section 29D-20(a) of the Act,
which provides:
“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 or she in any manner knowingly
threatens to commit or threatens to cause the commission of a terrorist act as defined in
Section 29D-10(1) and thereby causes a reasonable expectation or fear of the imminent
commission of a terrorist act as defined in Section 29D-10(l) or of another terrorist act as
defined in Section 29D-10(l).” 720 ILCS 5/29D-20(a) (West 2014).
A terrorist act includes “any act that 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) (West 2014).
Reading section 29D-20(a) and the definition of a terrorist act together, the State was required to
prove beyond a reasonable doubt that defendant (1) intended to intimidate or coerce a significant
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portion of a civilian population by (2) knowingly threatening to cause death or great bodily harm
to one or more persons and that, in doing so, (3) caused a reasonable expectation or fear of the
imminent commission of death or great bodily harm to one or more persons. The jury was so
instructed.
¶ 27 Our review of the evidence demonstrates that the evidence as to these elements was not
closely balanced. Regarding the latter two elements, the threats included “killing people” and
“lighting up” the Waukegan courthouse. Lowery testified that “lighting up” is a common
expression for shooting. The threats were made on the recorded line of a government agency
during the work week at 11:41 a.m. There was testimony that approximately 1000 people came
in and out of the courthouse on a daily basis. It is manifest that “killing people” and shooting into
crowds, if actualized, would cause or create a risk of death or great bodily harm to one or more
persons.
¶ 28 Moreover, the specificity of the threat, the fact that defendant did not deescalate when
given the chance, and the statement that “[y]ou guys have no idea what’s about to happen,”
alongside repeated taunts of “[c]ome and get me,” provided evidence that the threatened actions
were imminent. Indeed, Sergeant Lowery, a nine-year veteran charged with the security of the
courthouse, both inside and outside the courthouse, testified regarding the measures taken in
response to the threats. Lowery explained that the threat was the most serious he had received in
nine years of working courthouse security. He therefore assigned CERT members to guard the
courthouse, authorized them to fire their rifles if needed, and increased the staffing in the hallways.
Accordingly, the evidence that defendant knowingly threatened to cause death or great bodily harm
to one or more persons, and caused a reasonable expectation or fear of the imminent commission
of death or great bodily harm to one or more persons, was not closely balanced.
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¶ 29 What remains, then, is the question of whether evidence of defendant’s intent to intimidate
or coerce a significant portion of a civilian population was closely balanced. The statute does not
define what it means to intimidate or coerce a significant portion of a civilian population, though
the following definitions are found in Webster's Third New International Dictionary (1993).
Intimidate is defined as “to make timid or fearful: inspire or affect with fear surrounding him:
FRIGHTEN ***: to compel to action or inaction[.]” (Emphasis added.) Id. at 1184. Coerce is
defined as “1: to restrain, control or dominate, nullifying individual will or desire *** 2: to compel
to an act or choice by force, threat, or other pressure *** 3: to effect, bring about, establish, or
enforce by force, threat, or other pressure[.]” (Emphasis added.) Id. at 439.
¶ 30 The State presented evidence that defendant called a government agency during the work
week at 11:41 a.m. and threatened: “I’m coming. I’m fucking killing people.” Defendant then
threatened to “light[] up,” i.e., shoot up, the Waukegan courthouse. Even after being told that his
call was being recorded, defendant did not recant; he repeated his threat. His identity and location
were unknown. A person is presumed to intend the natural and probable consequences of his acts.
People v. Terrell, 132 Ill. 2d 178, 204 (1989). The natural and probable consequences of
defendant’s threats were that a significant portion of a civilian population—all of the people
entering and exiting the courthouse—would be, at a minimum, made fearful by the threat that the
courthouse was going to be “lit up.” Based upon a commonsense assessment of the evidence,
defendant could not have expected otherwise. Indeed, while what actually happened is not
dispositive of defendant’s intent, we reiterate Lowery’s testimony that the threat was the most
serious he had received in nine years of working courthouse security. He therefore assigned CERT
members to guard the courthouse, authorized them to fire their rifles if needed, and increased the
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staffing in the hallways. A significant portion of the civilian population undoubtedly would
include the courthouse community and those who use the courthouse.
¶ 31 The gravamen of defendant’s argument is that the failure to commit the jury to accept that
defendant’s non-testimony could not be used against him made it more likely that the jury used his
non-testimony to improperly infer his intent to coerce and intimidate. In making this argument,
however, defendant devotes little effort to analyzing the evidence or relating it to the specific
elements of the charge. Instead, he characterizes his words as “idle threats” that showed him
“impulsively venting his ire,” and he cites a handful of cases from foreign jurisdictions applying
similar statutes to vastly dissimilar factual situations. Given the obvious application of our facts
to the elements of the charged offense, we need not look to other jurisdictions’ interpretation of
similar statutes. Simply put, defendant fails to meet his burden of demonstrating that the evidence
was so closely balanced that the Rule 431 error severely threatened to tip the scales of justice.
¶ 32 The dissent correctly observes that “closely balanced” assumes the presence of some
evidence from which contrary inferences may be drawn. See People v. Reeves, 314 Ill. App. 3d
482, 489 (2000). According to the dissent, in our plain-error review, we should be looking for
evidence that would have allowed the jury to draw contrary inferences. See id. While we agree
that competing versions of events or witness credibility issues can lead to inferences that might
warrant a closely balanced finding in a given case, such is not the case here.
¶ 33 The dissent’s inference analysis, applied to the facts of the instant case, is problematic.
Namely, the dissent posits that defendant’s additional threats to kill police officers and “light up”
the Gurnee Police Department “are precisely the type of evidence that would allow the jury to
draw the contrary inference that the threats were directed at police officers, not a significant portion
of a civilian population.” But the mere fact that the jury could have drawn a contrary inference
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from uncontroverted evidence does not necessarily establish plain error. Indeed, the fact that the
recorded call also included defendant’s threats to police officers and the Gurnee Police Department
does not, as the dissent suggests, transform the totality of the evidence into closely balanced
evidence. At most, it suggests an inference of additional targets, not the elimination of the targeted
courthouse.
¶ 34 Our review of the first-prong, plain-error case law reflects that evidence has typically been
found to be closely balanced where, for instance, “each side has presented credible witnesses or
where the credible testimony of a witness is countered by evidence that casts doubt on his or her
account.” People v. Jackson, 2019 IL App (1st) 161745, ¶¶ 47-49. No such factual or credibility
concerns are present here. Indeed, our review of the case law has not disclosed any instance where
uncontroverted evidence introduced by unimpeached witnesses was determined to be closely
balanced. In Reeves itself, upon which the dissent relies, the court held that the evidence in support
of the defendant’s murder and aggravated arson convictions was not closely balanced where the
defendant had a history of drug transactions with the victims and had threatened them; his car was
seen outside the victims’ house the evening of the murders; and a lighter fluid container and gas
can were found in the defendant’s trunk after the murders. 314 Ill. App. 3d at 488-89. The Reeves
court concluded: “Though the evidence was circumstantial, there was no evidence introduced,
direct or circumstantial, from which alternative inferences could be drawn.” Id. at 489. In this
particular case, the evidence did not include competing versions of events.
¶ 35 The determination of “whether the evidence in a criminal trial is closely balanced depends
solely on the evidence adduced in that particular case.” People v. Naylor, 229 Ill. 2d 584, 609
(2008). The evidence here was uncontroverted and did not require credibility determinations. The
material evidence included a recording of the threats. The issue was defendant’s intent in voicing
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those threats in his call to a government agency in the middle of a business day. Intent is inferred
from the circumstances and is rarely susceptible of direct proof. See, e.g., People v. Scott, 2020
IL App (1st) 180200, ¶¶ 53-56. The recorded call included defendant’s threats: “I’m coming. I’m
fucking killing people.” The recorded call included defendant’s threat to “light[] up” the
Waukegan courthouse. This evidence—defendant’s recorded words—were not controverted.
¶ 36 Simply put, our qualitative, commonsense assessment of the totality of the evidence within
the context of this case demonstrates sufficient evidence that was not close. See Sebby, 2017 IL
119445, ¶¶ 53, 60.
¶ 37 Finally, we agree with the dissent that defendant could have been charged with lower class
offenses such as a class 1 falsely making a terrorist threat (720 ILCS 5/29D-25(a) (West 2014)) or
even a class 4 disorderly conduct (720 ILCS 5/26-1(b) (West 2014)). Indeed, as the dissent
observes, this case was originally resolved by a plea to disorderly conduct in exchange for
probation—a disposition that unraveled when California refused to accept supervision of
defendant’s probation. Whatever we might think the more appropriate disposition, especially
given defendant’s lack of felony criminal history and documented history of mental illness, we
nevertheless must defer to the charging decisions of the State’s Attorney.
¶ 38 Because the evidence of defendant’s guilt was not closely balanced, defendant is not
entitled to review under the plain-error doctrine. Therefore, the judgment must stand.
¶ 39 III. CONCLUSION
¶ 40 For the reasons stated, we affirm the judgment of the circuit court of Lake County.
¶ 41 Affirmed.
¶ 42 JUSTICE McLAREN, dissenting:
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¶ 43 I disagree with the majority’s conclusion that the evidence of guilt was not closely balanced
such that the trial court’s clear deviation from the requirements of Rule 431(b) was not reversible
as plain error. I conclude that the evidence was closely balanced, if not outright insufficient,
regarding whether the call constituted a threat of a terrorist act.
¶ 44 In assessing plain error, our job is to determine “whether the evidence adduced at trial was
close.” (Emphasis added.) Sebby, 2017 IL 119445, ¶ 53. “[W]e turn to the trial evidence because
a requisite to relief under the first prong [of the plain error doctrine] is a finding that that evidence
was closely balanced.” (Emphasis added.) Id., ¶ 52. “ ‘Closely balanced’ assumes the presence
of some evidence from which contrary inferences can be drawn.” People v. Reeves, 314 Ill. App.
3d 482, 489 (2000). “Whether the evidence is closely balanced is, of course, a separate question
from whether the evidence is sufficient to sustain a conviction on review against a reasonable
doubt challenge.” People v. Piatkowski, 225 Ill. 2d 551, 566 (2007). The issue “does not involve
the sufficiency of close evidence but rather the closeness of sufficient evidence.” Sebby, 2017 IL
119445, ¶ 60. Closely balanced evidence as to a single issue is sufficient to find that the evidence
is closely balanced for a plain error analysis. See People v. Carbajal, 2013 IL
App (2d) 111018, ¶¶ 41-46 (appellate court “determined that the evidence was closely balanced
on the issue of defendant's intent[.]”).
¶ 45 I must also point out a factual inaccuracy. Contra the majority, the caller did not threaten
that he would “kill Gurnee police officers.” Supra ¶ 4. The caller said, “I’m killing the cops that
arrested me.” Supra ¶ 9. There is nothing in the record regarding any arrest by the Gurnee police
department; indeed, there is no evidence of any arrest of defendant preceding the September 12,
2014 phone call. This is not mere quibbling. This entire case is based on a 37-second recording
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of 67 words spoken by an unidentified individual. We cannot make up additional words to flesh
out a chosen narrative.
¶ 46 I dispute the majority’s claim that the evidence “was relatively straightforward and did not
turn on credibility determinations.” Supra ¶ 24. For example, I find it interesting that, while there
was a stipulation as to the phone number from which the call was made, the only evidence at trial
suggesting that defendant made the call was the testimony of Bereczky, who testified that he told
a deputy that the phone number from which the call was made was defendant’s and that he believed
that the voice on a recording of the call was that of defendant. There were no phone records tying
defendant to the number used to make the call. Further, I disagree with the majority’s assertion
that the closeness of the evidence here was not affected by the issue of witness credibility. See
supra ¶ 24. Both Parsano and Lowery were questioned about their assessments of the threat
presented by the call. Parsano based his assessment of defendant’s intent on defendant’s failure
to recant and the fact that defendant, by hanging up, did not allow him the opportunity to try to
deescalate the situation. Lowery even testified regarding his assessment of the viability of the
bomb threat that was never made! Their assessments of the threat are opinions, not absolutes.
¶ 47 The majority stresses that “absolutely no contrary evidence” was presented regarding the
source of the call and that such testimony was “unimpeached and uncontradicted;” further, that the
actions of Parsano and Lowery are “not in dispute.” Supra ¶ 25. However, we must remember
that a defendant has “no burden to present any evidence or to testify himself at trial.” Piatkowki,
225 Ill. 2d at 567 (finding evidence closely balanced where defendant presented the testimony of
only one witness and a stipulation).
¶ 48 Defendant was charged under section 29D-20 of the Act, which provides:
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“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 or she in any manner knowingly
threatens to commit or threatens to cause the commission of a terrorist act as defined in
Section 29D-10(1) and thereby causes a reasonable expectation or fear of the imminent
commission of a terrorist act as defined in Section 29D-10(l) or of another terrorist act as
defined in Section 29D-10(l).” 720 ILCS 5/29D-20(a) (West 2014).
This is a Class X felony. See 720 ILCS 5/29D-20(c) (West 2014).
¶ 49 The majority proposes the elements of the charges as: “(1) with the intent to intimidate or
coerce a significant portion of a civilian population (2) defendant knowingly threatened to commit
or threatened to cause the commission of a terrorist act and (3) thereby caused a reasonable
expectation or fear of the imminent commission of a terrorist act.” Supra ¶ 26.
¶ 50 First, what evidence was there that defendant intended to intimidate or coerce anyone?
While the statute does not define either of those verbs, the majority provides various definitions
from Merriam-Webster, including “to compel to action or inaction” (intimidate) and “to compel
to an act or choice by force, threat, or other pressure” and “to effect, bring about, establish, or
enforce by force, threat, or other pressure (coerce). See supra ¶ 29. We can also look to the offense
of intimidation, which provides that a person commits intimidation when, “with intent to cause
another to perform or to omit the performance of any act, he or she communicates to another,
directly or indirectly by any means a threat to perform without lawful authority” various acts.
(Emphases added.) 720 ILCS 5/12-6(a)(1) (West 2014). “The purpose of the intimidation statute
is the prohibition of making threats intended to compel a person to act against his will.” (Emphasis
added.) People v. Casciaro, 2015 IL App (2d) 131291, ¶ 84.
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¶ 51 Common to all these definitions is an element of making someone do something or refrain
from doing something. For example, in People v. Oduwole, the defendant was charged with
attempt (making a terrorist threat) based in part upon these lines written on the back of a piece of
paper found in his car: “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!” Oduwole, 2013 IL App (5th) 1200391, ¶ 15.
¶ 52 Unlike the defendant in Oduwole, the caller in our case never demanded any action by any
person. The gist of the call here was revenge for actions already taken, not compulsion to do or
not do a future act. “I’m coming. I’m f***ing killing people. I’m killing the cops that arrested
me.” “I’m lighting up the Gurnee Police Department and the Waukegan courthouse. Come and
get me.” The caller’s own words were evidence that could have allowed the jury to draw an
inference that the caller did not intend to intimidate or coerce anyone.
¶ 53 The majority posits that the “natural and probable consequences of defendant’s threats
were that a significant portion of a civilian population—all of the people entering and exiting the
courthouse—would be, at a minimum, made fearful by the threat that the courthouse was going to
be ‘lit up.’ ” Supra ¶ 30. These consequences must not have been all that “natural and probable,”
as they did not, in fact, occur. There is no evidence that “all of the people entering and exiting the
courthouse” were ever told of this threat even though many of those people were evacuated from
the courthouse earlier that same day as a response to the nonexistent bomb threat. The majority
states that “what actually happened is not dispositive of defendant’s intent” (id.), yet it also asserts
that defendant must be presumed to have intended what in fact did not happen. Id.
¶ 54 Next, who is the “significant portion of a civilian population” that defendant allegedly
intended to coerce? Again, Merriam-Webster has provided a relevant definition: a “civilian” is
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“one not on active duty in the armed services or not on a police or firefighting force.” (Emphasis
added.) Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/civilian (last
visited Mar. 12, 2021). The only individuals specifically threatened in the call were police
officers.1 While such a threat is, of course, unacceptable, the actual subjects of the threat do not
fulfill the statutory requirement of “a significant portion of a civilian population.” While civilians
could certainly find themselves in the middle of an attack on a police department or a courthouse,
the statute requires that a defendant intend to coerce or intimidate a significant portion of a civilian
population; the civilians are not to be mere bystanders who could be caught up in the midst of a
terrorist act.
¶ 55 The majority completely misapprehends and misanalyses the specific threats to kill police
officers that arrested him and to “light up” the Gurnee Police Department. Those threats were
specific threats to non-civilians. Yet the majority downplays those specific threats and finds that
the call “also included” (emphasis in original) those specific targets and “suggests an inference of
additional targets, not the elimination of the targeted courthouse.” 2 Supra ¶ 33. Those specific
threats against law enforcement personnel are not mere suggestions of additional targets; they are
the focus of the threat. Civilians are never specifically mentioned in the call. The caller did say,
“I’m f***ing killing people.” However, this generalized reference to “people” (that would also,
incidentally, include police officers) is, at best, relevant to, but certainly not conclusive of, a
conclusion that a significant portion of a civilian population was the focus of the threat. The actual
words of the call are precisely the type of evidence that would allow the jury to draw the contrary
1 The caller stated, “I’m killing the cops that arrested me.” There is no indication as to
which arrest or police department the caller was referring. 2 I also note that police officers would also be present in the courthouse.
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inference that the threats were directed at police officers, not a significant portion of a civilian
population, thus rendering the evidence closely balanced on this issue, if not actually insufficient.
¶ 56 Ironically, the only time that a large number of civilians was intimidated or coerced was
when parts of the courthouse were evacuated; however, this was done in response to the non-
existent bomb threat. When Lowery learned of the true nature of the phone call, he did not again
evacuate the courthouse, he assigned additional guards to the entrances and hallways of the
courthouse and authorized some of them to use rifles. The testimony regarding the evacuation and
search of the courthouse was not only irrelevant to the charge, it was extremely prejudicial,
showing fear and frantic activity based on a threat that defendant did not make. In looking at the
balance of evidence, the State’s use of irrelevant, prejudicial evidence makes the balance much
closer.
¶ 57 The majority then lists nebulous and irrelevant evidence to support its conclusion that the
evidence regarding the element of “a reasonable expectation or fear of the imminent commission
of a terrorist act” was not close. See supra ¶ 28. I agree that the statement “[y]ou guys have no
idea what’s about to happen,” is relevant to this consideration. However, how does the failure to
recant influence this? How is the taunt of “Come and get me” evidence that the threatened actions
were imminent? How are Lowery’s actions taken after receipt of the threat evidence of a
reasonable expectation or fear of the imminent commission of a terrorist act? A fear of an
imminent terrorist attack may be adjudged to be reasonable or unreasonable based on the alleged
threat. Lowery’s actions may be adjudged reasonable or unreasonable, in light of the
reasonableness or unreasonableness of his fear of a terrorist attack. But Lowery’s later-taken
actions is not evidence of the reasonableness of his fear of an imminent terrorist attack. Actions
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follow a conclusion; they may be evidence of the conclusion, but they cannot support the
conclusion that preceded them.
¶ 58 Section 29D-20(b) of the Act provides in part that “[i]t is not a defense to a prosecution
under this Section [making a terrorist threat] that at the time the defendant made the terrorist threat,
unknown to the defendant, it was impossible to carry out the threat.” 720 ILCS 5/29D-20(b)n
(West 2014). Applying the principle of inclusio unius est exclusion alterius (the inclusion of one
thing in a statute is construed as the exclusion of all others) (see People v. Knapp, 2019 IL App
(2d) 160162, ¶ 121 (McLaren, J., dissenting)), the legislature has thus allowed as a defense to a
charge of making a terrorist threat the defendant’s knowledge that it was impossible to carry out
the threat. Such knowledge of impossibility would, in fact, make the threat a false threat. Here, it
is undisputed that defendant was in southern California at the time that the threatening call was
made. While not conclusive proof of impossibility, that fact is certainly evidence reducing the
probability that defendant could fulfill such a threat, again making the evidence more closely
balanced under a plain error review.
¶ 59 Further, what Lowery did after learning of the threat cannot prove whether the caller
actually did what the statute proscribed. We are supposed to be reviewing the evidence as to what
defendant did, not as to what was done in response, especially as it relates to the threat being true
or false. The evidence as to whether the threat was true or false is close simply because the
opinions of law enforcement officials will virtually always make it “true” if they react as
responsible guardians of the public safety.
¶ 60 Interestingly, the legislature has provided two statutory schemes under which a person may
be prosecuted for making a false threat. First, section 29D-25 of the Act (Falsely making a terrorist
threat) provides in relevant part:
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“(a) A person commits the offense of falsely making a terrorist threat when in any
manner he or she knowingly makes a threat to commit or cause to be committed a terrorist
act as defined in Section 29D-10(1) or otherwise knowingly creates the impression or belief
that a terrorist act is about to be or has been committed***that he or she knows is false.”
720 ILCS 5/29D-25(a) (West 2014).
This is a Class 1 felony, versus the Class X felony that was charged. See 720 ILCS 5/29D-25(b)
(West 2014).
¶ 61 We review all the provisions of an enactment as a whole so that words and phrases are not
construed in isolation but are interpreted in light of other relevant statutory provisions. People v.
Molnar, 222 Ill. 2d 495, 519 (2006). “All parts, provisions or sections of a statute must be
construed together, in light of the general purpose and object of the statute, so as to make it
harmonious and consistent in all its parts.” People v. Burchell, 2018 IL App (5th) 170079, ¶ 8.
¶ 62 The legislature is fully within its power to punish different offenses differently. People v.
Townsend, 275 Ill. App. 3d 413, 419 (1995). In general, where the legislature affixes a greater
penalty to an offense, it deems that offense more serious than other offenses with lesser penalties.
See People v. James, 246 Ill. App. 3d 939, 946 (1993). The legislature has clearly differentiated
between making a terrorist threat and falsely making a terrorist threat. It has also clearly
determined that making a terrorist threat (Class X felony) is a more serious offense than falsely
making a terrorist threat (Class 1 felony); the greater penalty speaks to that. But what is the
difference between the two acts? The majority declines to consider this distinction, let alone
address it.
¶ 63 I first note that the charge of falsely making a terrorist threat does not require the intent to
intimidate or coerce a significant portion of a civilian population. Next, it does require that the
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defendant know that the threat that he has made is false. See 720 ILCS 5/29D-25(a) (West 2014).
Considering this in context with section 29D-20 of the Act, making a terrorist threat must then
require the maker’s knowledge that the threat is not false. Again, the call in question did not
attempt to intimidate or coerce a significant portion of a civilian population. Further, defendant’s
residence in southern California on the day of the call certainly was evidence that imminent
commission of the threatened activity was improbable, if the threat was not an outright falsehood.
¶ 64 Second, the legislature has provided the crime of disorderly conduct that is chargeable, in
relevant part, when a person knowingly:
“[t]ransmits or causes to be transmitted in any manner to any peace officer, public officer
or public employee a report to the effect that an offense will be committed, is being
committed, or has been committed, knowing at the time of the transmission that there is no
reasonable ground for believing that the offense will be committed, is being committed, or
has been committed.” 720 ILCS 5/26-1(a)(4) (West 2014).
This charge is a Class 4 felony. See 720 ILCS 5/26-1(b) (West 2014).
¶ 65 At one point in this case, defendant did plead guilty to a reduced charge of disorderly
conduct in that he “transmitted to a public employee a report that an offense will be committed
knowing at the time of the transmission that there was [sic] no reasonable grounds for believing
that the offense would be committed.” Defendant was sentenced to an 18-month term of probation
and time served in jail, with his probation to be transferred to California. The trial court granted
defendant’s motion to withdraw his guilty plea after the State of California declined to accept the
transfer of probation.
¶ 66 I address these other charges because they are relevant to a plain error analysis, not merely
to challenge the charging prerogative of the State’s Attorney. See supra ¶ 31. The legislature has
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addressed a defendant’s knowledge of the impossibility of completing a threat under this charge
and also provided two specific charges addressing false threats. The “truth” of the threat under
the charge brought here is a relevant consideration. The question is not whether the threatened
action did or did not occur, but whether the reported threat was true or false.
¶ 67 Considering all the evidence in this case, including what actually was (and was not) said
on the call and defendant’s location on the day in question, I conclude that the evidence that
defendant committed the crime of making a terrorist threat was, at most, closely balanced. This
evidence actually leaned more heavily towards the uncharged crimes of falsely making a terrorist
threat or disorderly conduct. The trial court’s clear and obvious failure to properly admonish the
jurors pursuant to Supreme Court Rule 431(b) should be considered plain error, and defendant
should receive a new trial. Therefore, I dissent.
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