People v. Turner

• Decision Date: 17 August 1993
• Docket Number: 2-91-0640,Nos. 2-91-0639,s. 2-91-0639
• Citation: 619 N.E.2d 781,189 Ill.Dec. 80,249 Ill.App.3d 474
• Parties: , 189 Ill.Dec. 80 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Kenneth T. TURNER et al., Defendants-Appellants.
• Court: United States Appellate Court of Illinois

Page 781

619 N.E.2d 781

249 Ill.App.3d 474, 189 Ill.Dec. 80

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Kenneth T. TURNER et al., Defendants-Appellants.

Nos. 2-91-0639, 2-91-0640.

Appellate Court of Illinois Second District.

Aug. 17, 1993.

G. Joseph Weller, Deputy Defender, and Ingrid L. Moller, Office of the State Appellate Defender, Elgin, for Kenneth T. Turner.

James E. Ryan, Du Page County State's Atty., William L. Browers, Deputy Director, State's Attys. Appellate Prosecutor, Brian L. Buzard, Mt. Morris, and Jay Wiegman, Springfield, for the People.

Justice DOYLE delivered the opinion of the court:

Following a bench trial, defendants, Kenneth Turner and Luvenia Givens, were each found guilty of one count of cruelty to children (Ill.Rev.Stat.1989, ch. 23, par. 2368 (now 720 ILCS 115/53 (West 1992)).) Defendants were sentenced to 30 months' probation with counselling and ordered to pay costs. Defendants filed a timely appeal asserting that (1) the State failed to prove beyond a reasonable doubt that defendants unnecessarily exposed their children to the inclemency of the weather; (2) the trial court erred by considering evidence that defendants had left their children unattended in a car on a previous occasion; and (3) victim's assistance fines were improperly imposed by the circuit clerk.

On January 4, 1991, defendants were living in an apartment in Woodridge with their children, Kenyatta Givens, then age nine, and Keenath Turner, then age two. A friend of defendant Turner's, Harry Campbell, also lived with them.

Defendants both worked as paper stuffers at the Chicago Tribune distribution center in Downers Grove where they inserted various sections into the newspaper. They were regularly scheduled to work on Thursdays, Fridays, and Saturdays, and they worked irregular hours during the rest of the week. Defendant Turner was also employed delivering papers. On Friday, January 4, defendants were scheduled to work from 3:30 p.m. until they were finished or had to leave. The testimony of defendants' supervisor indicated the paper-stuffing crew worked that evening until at least 2 a.m. the following morning. Defendants were paid a certain amount for each paper they completed, rather than hourly.

At about 3 p.m. on January 4, 1991, defendant Turner attempted to phone Campbell from a convenience store to assure that he would be able to watch the children. Defendants also called their respective mothers and Turner's brother, but none of them were able to baby-sit. Unable to secure a baby-sitter, defendants drove to work, parked on the street, left the children in the car, and went to work inside the building. Evidence showed that the temperature that evening was 21 degrees Fahrenheit.

At about 6:30 p.m. someone called the Downers Grove police to report that two children had been left in a car for approximately three hours. Officer David Franklin arrived at the Tribune building at about 6:40 and found the children huddled together inside the car. The car was not running, and its windows were covered with frost from the cold. Although Kenyatta testified that she had had gloves, a hood, and a cover with her, the police officers testified that neither child had gloves or a hat, nor was there a blanket in the car. The two-year old had a running nose and his diaper needed changing. There was also neither food nor water in the car. The older child initially told police she was cold but later stated that she really was not. Paramedics found no physical harm to the children. Defendants were arrested and charged with cruelty to children, a Class 4 felony.

At trial, Campbell explained that he had known Turner since they were in the fifth grade. In June 1989, defendants were unemployed and homeless and lived in their car until they secured employment at the Tribune. Campbell moved in with defendants shortly after they found an apartment. He lived with them rent-free in exchange for periodically baby-sitting the children. Occasionally, he would stop by the Tribune on his way home from work to see if the children were waiting in the car for him to baby-sit. This would happen approximately three times per month. Defendant Turner admitted that there had been no arrangement made for Campbell to baby-sit the children on January 4, 1991. On that day Campbell worked late, getting off at 5:30. He did not think the children would require baby-sitting at that late hour, and so he proceeded directly home.

Tim Yarcheeta testified that he is a supervisor at the Tribune. Defendants would sometimes work for him and were doing so on January 4. Defendants were scheduled to work until they finished all the papers or until they "had to leave." Yarcheeta recalled that in November 1990 he had told Turner that he could bring the children into the building. Defendant, however, had also worked under another supervisor, known as "Bug." Yarcheeta and Bug each supervised one-half of the work area in the Tribune's warehouse. Bug had told Turner once before that it would not be wise to bring his children into the building because the employer had no liability insurance to cover them. Also, there had previously been problems with unsupervised children running around in the work area, and Yarcheeta had told Bug on a prior occasion to tell his people to keep their children out of Yarcheeta's side of the warehouse.

Two Markham police officers testified that defendants had previously been arrested after a child was found left alone in Givens' car outside the Markham police station in October 1989.

The court found defendants guilty. After denying their post-trial motions, it sentenced them to 30 months' probation, including counseling.

Defendants' first contention on appeal is that the State failed to prove beyond a reasonable doubt that they wilfully and unnecessarily exposed their children to the inclemency of the weather. The statute under which defendants were convicted provides:

"Any person who shall wilfully and unnecessarily expose to the inclemency of the weather, or shall in any other manner injure in health or limb, any child, apprentice, or other person under his legal control, shall be guilty of a Class 4 felony." Ill.Rev.Stat.1989, ch. 23, par. 2368 (now 720 ILCS 115/53 (West 1992)).

Defendants contend that the State was required to prove beyond a reasonable doubt that the exposure of the children was done "unnecessarily." They further contend that the State failed to meet its burden with respect to this element of the offense. Defendants presented evidence that they feared losing their jobs and perhaps becoming homeless again, that they were unable to afford to pay a baby-sitter, and that they had attempted unsuccessfully to find someone to watch the children. Moreover, they received mixed signals from Tribune supervisors concerning whether the children could stay inside the building.

The State does not contest that it had the burden of proving lack of necessity but contends that the evidence was sufficient. According to the State, the evidence established that other options were available, such as bringing the children inside or having one of the parents stay home from work. Therefore, leaving them in the car and exposing them to the weather was unnecessary.

Initially, we agree that where the crime of cruelty to a child is based upon exposure to the inclemency of the weather, the lack of necessity is an element of the offense which the State is required to prove beyond a reasonable doubt. (See People v. Miller (1983), 116 Ill.App.3d 361, 365-67, 72 Ill.Dec. 266, 452 N.E.2d 391.) Whether defendants unnecessarily exposed their children to the inclemency of the weather was a question of fact which must be resolved by considering all the attendant circumstances. Cf. People v. Gaurige (1988), 168 Ill.App.3d 855, 865, 119 Ill.Dec. 447, 522 N.E.2d 1306 (factual determination regarding whether actions taken in self-defense were necessary depends upon the surrounding facts and circumstances of the case).

Due process requires that the prosecution prove beyond a reasonable doubt all the elements included in the definition of the charged offense. (Patterson v. New York (1977), 432 U.S. 197, 210, 97 S.Ct. 2319, 2327, 53 L.Ed.2d 281, 292.) The standard for reviewing whether sufficient evidence was presented to support a criminal conviction is whether, after considering all the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. (People v. Wittenmyer (1992), 151 Ill.2d 175, 190, 176 Ill.Dec. 37, 601 N.E.2d 735; People v. Campbell (1992), 146 Ill.2d 363, 374, 166 Ill.Dec. 932, 586 N.E.2d 1261.) A reviewing court will not substitute its judgment for that of the trier of fact on questions involving the weight of the evidence or the credibility of witnesses, and will not reverse a criminal conviction unless the evidence is so unreasonable, improbable or unsatisfactory as to justify a reasonable doubt of the defendant's guilt. Campbell, 146 Ill.2d at 375, 166 Ill.Dec. 932, 586 N.E.2d 1261.

"Necessary" and the related term "unnecessarily" are commonly used in the law, and their meaning has a great flexibility depending upon the context in which they are used. (See Illinois Bell Telephone Co. v. Fox (1949), 402 Ill. 617, 631, 85 N.E.2d 43.) "Necessity" can encompass that which is "absolutely necessary," "indispensable," "expedient," or merely "reasonably convenient." (Illinois Bell, 402 Ill. at 631, 85 N.E.2d 43.) In the context of the affirmative defense of necessity, the meaning is very restrictive; it applies only in situations which the defendant is blameless in occasioning or developing, and then only to conduct which the defendant reasonably believes is necessary to avoid a public or private injury greater than that which might reasonably result from that conduct. (720 ILCS 5/7-13 (West 1992).) Beca...