When Does an “Attempt” to Commit a Crime Become an Attempted Crime in Illinois?

Inchoate Offenses

The law considers crimes that have yet to occur, but near to occur to be inchoate offenses.  An inchoate crime is defined as, “something which has begun but has not been completed, either an activity or some object which is incomplete. It may define a potential crime like a conspiracy which has been started but not perfected or finished, (buying the explosives, but not yet blowing up the bank safe).”

Illinois Inchoate Crimes

There are three different inchoate crimes under the Illinois statute: solicitation, conspiracy, and attempt.  When an attempted crime rises to the level of an actual attempt may be the most difficult gauge to measure.  In Illinois, “A person commits the offense of attempt when, with intent to commit a specific offense, he or she does any act that constitutes a substantial step toward the commission of that offense.”  The key incriminating language in that sentence is “substantial step.”  What is a substantial step?  A substantial step is an act that corroborates an actor’s intent with respect to the crime in question. The act must be accompanied by and confirm the guilty state of mind of the perpetrator of the crime. This test includes some element of proximity and equivocality.  This means, that the person being charged for an attempted crime either must be in a location that circumstantially proves that they were taking a substantial step toward the commission of the crime or the evidence against them is so clear that it proves a substantial step was taken in order to commit the crime.

Examples of Attempted Crimes in Illinois

Last month, an appellate court reversed the conviction of Olutosin Oduwole — a former Southern Illinois University student and aspiring rap artist — for an “attempt to make a terroristic threat” (People v. Oduwole, __ N.E.2d __, 2013 WL 885173 (Ill. App. 5th Dist., March 6, 2013)).  The conviction was a result of Mr. Oduwole’s home being searched in connection with a weapons violation.  While investigating the home, officers found a piece of paper that had written on it, “violent and sexually suggestive rap lyrics, as well as what seemed to be a draft of an extortion note, demanding that money be sent to a PayPal account or else “a murderous rampage similar to the VT shooting will occur at another highly populated university.” Mr. Oduwole claims the paper found contains nothing more than rap lyrics.  Based on the fact that Oduwole purchased four firearms and opened a PayPal account a jury convicted him of attempting to make a terrorist threat.  The issue is whether this evidence constitutes a “substantial step” to commit a crime.  A jury, like this one, could reasonable believe that Mr. Oduwole has in fact attempted a terroristic threat, even though he was no where near a university and the evidence was circumstantial at best.  A qualified Illinois Criminal Defense Attorney will be able to advocate that thoughts alone are not grounds for conviction based on such tenuous evidence.

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