People v. Jordan

• Decision Date: 08 December 2004
• Docket Number: No. 1-03-2135.,1-03-2135.
• Citation: 290 Ill.Dec. 16,354 Ill. App.3d 294,820 N.E.2d 1083
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Christopher JORDAN, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

820 N.E.2d 1083

354 Ill. App.3d 294

290 Ill.Dec. 16

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Christopher JORDAN, Defendant-Appellant.

No. 1-03-2135.

Appellate Court of Illinois, First District, Third Division.

December 8, 2004.

Michael J. Pelletier, Deputy Appellate Defender (Kathleen M. Flynn, Assistant Appellate Defender, of counsel), for Appellant.

Richard A. Devine, State's Attorney of Cook County (Renee Goldfarb, Margaret J. Campos, and Michelle L. Feola, of counsel), for Appellee.

Presiding Justice KARNEZIS delivered the opinion of the court:

Following a bench trial, the court convicted defendant Christopher Jordan of endangering the life and health of a child in violation of section 12-21.6 of the Criminal Code of 1961 (the Code)(720 ILCS 5/12-21.6 (West 2002)). Defendant appeals his conviction, arguing that (1) the State failed to meets its burden of proving that the child's life or health was endangered by defendant's actions and (2) the child endangerment statute under which he was convicted is unconstitutional. We reverse.

BACKGROUND

Shortly after 2 p.m. on February 5, 2003, defendant drove to Truman College to pick up a textbook at the college bookstore. His five-month-old daughter Dominique was in an infant car seat on the backseat of defendant's car. Given that Dominique was sleeping, defendant left Dominique in the car while he went into the college to pick up the book. The bookstore was closed when he got there, so he returned to his car, where he saw fire trucks and police cars surrounding it. In response to a call from college security, the fire department had removed Dominique from the car. Defendant was placed under arrest after identifying himself as her father. He was charged with endangering the life or health of a child and elected to proceed to a bench trial.

Ruben Tate, supervisor of security of Truman College, testified that he was approached by a woman who stated that she saw an infant alone in a car. He found the car at the rear of the parking lot after approximately 10 minutes of searching. The infant was crying. Tate could not get into the car because the doors were locked and the windows were shut, so he had his staff call the fire department. The fire department arrived approximately 10 minutes after he placed the call, and two police cars arrived 10 minutes after that. The fire department got the car open and removed the infant. She was taken to an ambulance and her vital signs were checked. Tate stated that it was 30 minutes or more between the time he arrived at the car and the time the fire department removed the infant. The temperature was below freezing. The infant was dressed in a winter coat, with a hood and gloves, and was covered in a blanket. There was a full bottle in the car.

Officer Robert Hightower testified that he received a call at approximately 2:30 p.m. about a child left alone in a motor vehicle. He arrived at the scene at approximately 2:45 p.m. and found the fire department already there. It took the fire department six to eight minutes to get the infant from the car after Officer Hightower arrived. It was so cold that you could see your breath in the air. Shortly after the infant was moved to the ambulance, defendant approached and identified himself as her father and said he had only been away from the car for five minutes. Officer Hightower stated that he had been there at least 12 minutes prior to defendant's arrival.

Defendant testified that he was gone from the car for approximately six minutes, three minutes to walk to the bookstore and three minutes to return. When defendant arrived at the school, Dominique was asleep. Defendant decided to leave Dominique in the car because it was windy outside. He stated that it was not cold outside and that she was dressed "overly warm," in a full body suit with a hood, gloves and feet, and she was covered with a thick wool blanket. He had parked approximately one-half mile from the door of the school.

At the commencement of its closing argument, the State presented the court with a copy of section 12-21.6(b) of the Code, which states that "[t]here is a rebuttable presumption that a person committed the offense if he or she left a child 6 years of age or younger unattended in a motor vehicle for more than 10 minutes." 720 ILCS 5/12-21.6(b) (West 2002). The court found defendant guilty of endangering the life and health of a child and sentenced him to three months' court supervision. Defendant timely appeals.

ANALYSIS

Defendant contends that section 12-21.6(b) of the child endangerment statute (720 ILCS 5/12-21.6(b) (West 2002)) is unconstitutional and violates the due process clause of the fourteenth amendment to the United States Constitution (U.S. Const., amend. XIV) because it contains a mandatory presumption that relieves the State of its burden to prove the element of intent beyond a reasonable doubt.

Section 12-21.6 reads:

"(a) It is unlawful for any person to willfully cause or permit the life or health of a child under the age of 18 to be endangered or to willfully cause or permit a child to be placed in circumstances that endanger the child's life or health, except that it is not unlawful for a person to relinquish a child in accordance with the Abandoned Newborn Infant Protection Act.

(b) There is a rebuttable presumption that a person committed the offense if he or she left a child 6 years of age or younger unattended in a motor vehicle for more than 10 minutes." 720 ILCS 5/12-21.6(a), (b) (West 2002).

The constitutionality of a statute is subject to de novo review. People v. Malchow, 193 Ill.2d 413, 418, 250 Ill.Dec. 670, 739 N.E.2d 433 (2000). Statutes carry a strong presumption of constitutionality and the party challenging the statute bears the burden of rebutting that presumption. People v. Maness, 191 Ill.2d 478, 483, 247 Ill.Dec. 490, 732 N.E.2d 545 (2000). This court has a duty to interpret a statute in a manner that upholds its validity and constitutionality if it can be reasonably done. People v. Fisher, 184 Ill.2d 441, 448, 235 Ill.Dec. 454, 705 N.E.2d 67 (1998).

The due process clause of the fourteenth amendment of the United States Constitution requires the State to prove every element of a crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 316, 99 S.Ct. 2781, 2787, 61 L.Ed.2d 560, 571(1979). The State may, in certain circumstances, rely on presumptions and inferences in establishing a defendant's guilt. County Court of Ulster County v. Allen, 442 U.S. 140, 156, 99 S.Ct. 2213, 2224, 60 L.Ed.2d 777, 791 (1979). A presumption is a legal device that either permits or requires the fact finder to assume the existence of an ultimate fact, after basic or predicate facts have been established. People v. Pomykala, 203 Ill.2d 198, 203, 271 Ill.Dec. 230, 784 N.E.2d 784, 787 (2003). Presumptions may be permissive or mandatory. People v. Watts, 181 Ill.2d 133, 142, 229 Ill.Dec. 542, 692 N.E.2d 315 (1998). Mandatory presumptions may be further classified as rebuttable or irrebuttable. Pomykala, 203 Ill.2d at 203, 271 Ill.Dec. 230, 784 N.E.2d at 787. A permissive presumption is one where the fact finder is free to infer the existence of the ultimate or presumed fact upon proof of the predicate fact. Pomykala, 203 Ill.2d at 203, 271 Ill.Dec. 230, 784 N.E.2d at 787. A mandatory presumption is one in which the fact finder is required to accept the presumption. Watts, 181 Ill.2d at 142, 229 Ill.Dec. 542, 692 N.E.2d 315.

The United States Supreme Court has held that mandatory conclusive presumptions do not pass constitutional muster because such presumptions directly conflict with the presumption of innocence. Sandstrom v. Montana, 442 U.S. 510, 523, 99 S.Ct. 2450, 2459, 61 L.Ed.2d 39, 50 (1979). Likewise, the Supreme Court has held that mandatory rebuttable presumptions that shift the burden of persuasion to the defendant are per se unconstitutional as they alleviate the State's burden to prove every element of a crime beyond a reasonable doubt. Sandstrom, 442 U.S. at 524,99 S.Ct. at 2459,61 L.Ed.2d at 51. Our supreme court has subsequently held that mandatory rebuttable presumptions that shift the burden of production to the defendant are also unconstitutional. Watts, 181 Ill.2d at 147,229 Ill.Dec. 542,692 N.E.2d 315. Consequently, under Illinois law, all mandatory presumptions are now considered to be per se unconstitutional. Pomykala, 203 Ill.2d at 204,271 Ill.Dec. 230,784 N.E.2d at 788.

In the case sub judice, defendant argues that section 12-21.6(b) creates an unconstitutional mandatory rebuttable presumption of willful child endangerment based solely on the fact that a child under 6 years of age was left unattended in a motor vehicle for more than 10 minutes. 720 ILCS 5/12-21.6(b) (West 2002). The State counters that section 12-21.6(b) is a permissive presumption and relies on People v. Pomykala, 203 Ill.2d 198, 271 Ill.Dec. 230, 784 N.E.2d 784 (2003).

In Pomykala, the defendant was convicted of reckless homicide after his vehicle hit an oncoming vehicle while he was driving under the influence of alcohol. A nonpattern jury instruction was given based on section 9-3(b) of the Code (720 ILCS 5/9-3(b) (West 2000)). The instruction stated that if the jury found that the defendant was operating his vehicle under the influence of alcohol at the time of the accident, it was to presume that the defendant acted recklessly unless disproved by contrary evidence. Pomykala, 203 Ill.2d at 202, 271 Ill.Dec. 230, 784 N.E.2d at 787. The statute provided:

"`In cases involving reckless homicide, being under the influence of alcohol or any other drug or drugs at the time of the alleged violation shall be presumed to be evidence of a reckless act unless disproved by evidence to the contrary.'" Pomykala, 203 Ill.2d at 202, 271 Ill.Dec. 230, 784 N.E.2d at 787, quoting 720 ILCS 5/9-3(b) (West 2000).

The defendant argued on appeal that section 9-3(b) created a...