People v. Penning

2021 IL App (3d) 190366

• Court: Appellate Court of Illinois
• Decided: May 26, 2021
• Docket: 3-19-0366
• Status: Published

Opinion

2021 IL App (3d) 190366

Opinion filed May 26, 2021 ____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit Court ) of the 21st Judicial Circuit, Plaintiff-Appellee, ) Kankakee County, Illinois. ) ) Appeal No. 3-19-0366 v. ) Circuit No. 18-CM-172 ) ) The Honorable JACOB PENNING, ) Clark E. Erickson, ) Judge, Presiding. Defendant-Appellant. ) ___________________________________________________________________________

JUSTICE LYTTON delivered the judgment of the court, with opinion. Justices Daugherity and Schmidt concurred in the judgment and opinion. ____________________________________________________________________________

OPINION

¶1 Defendant was charged with two counts of endangering the life or health of a child (720

ILCS 5/12C-5(a)(1), (2) (West 2018)) when he overdosed on heroin while a five-year-old child,

B.L., was in his care and custody. The trial court found defendant guilty, sentenced him to 18

months of probation, and ordered him to complete drug treatment. Defendant appeals his

conviction. We affirm. ¶2 I. BACKGROUND

¶3 In April 2018, defendant was charged by information with two counts of endangering the

life or health of a child. Count I alleged that defendant “did cause or permit the life or health of a

child under the age of 18, being B.L., to be endangered.” Count II alleged that defendant “did

knowingly cause or permit a child, being B.L., to be placed in circumstances that endanger the

child’s life or health.” Defendant waived his right to a jury trial, and the case proceeded to a bench

trial.

¶4 The parties stipulated to the admission of a report written by Officer L. Arsenau. Arsenau

stated that he reported to an apartment on February 17, 2018, at approximately 8:26 p.m. “for a

possible overdose.” When Arsenau arrived, he was greeted by Joseph Shepherd, who told him

defendant was “in the bathroom laying on the floor unconscious.” While walking through the

living room of the apartment, Arsenau noticed “a small child [B.L.] *** who was sitting on the

edge of the couch closest to the bathroom.” When Arsenau reached the bathroom, he found

defendant laying on the floor, barely breathing, with blood on his nose and blood coming from

both nostrils.

¶5 Paramedics arrived and administered to defendant one dose of Narcan, which was not

effective. Paramedics then cut off defendant’s shirt and sweatshirt, placed a monitor on his chest,

and gave him a second dose of Narcan intravenously. Approximately five minutes later, defendant

started to regain consciousness. Upon regaining consciousness, defendant “started to become

combative towards the paramedics” and had to be “physically restrained until he calmed down.”

¶6 When defendant calmed down and sat up, the paramedics found a small red bag containing

a white powdery substance and a syringe on the bathroom floor. Paramedics placed defendant on

a stretcher and carried him out of the apartment building. Before he was placed in an ambulance,

2 an officer searched defendant’s pants pockets and found “a bag that contained a green leafy

substance and a syringe.”

¶7 Upon searching the bathroom, Arsenau found “a sandwich sized bag with multiple small

red bags filled with the same white powdery substance that was in the small red bag found where

[defendant] was laying in the bathroom.” In the bathroom, Arsenau also “located multiple open

bags of medical equipment such as a bag for syringes and a latex band.” After completing his

search of the bathroom “for anything that might cause harm to [B.L.],” Arsenau and another officer

went outside to talk to Shepherd, who had B.L. with him. Shepherd told Arsenau he was going to

take B.L. to the hospital.

¶8 At the hospital, defendant told Arsenau that B.L. was Amanda’s child and that he was

watching him for the night while she was at work. When Arsenau asked defendant for Amanda’s

contact information, defendant “failed to cooperate.”

¶9 Amanda L. testified that she and defendant share a son, B.L., who is five years old. On

February 17, 2018, at around 8 or 9 p.m., defendant began watching B.L. at Amanda’s apartment.

When Amanda left her apartment, the only people there were defendant and B.L. According to

Amanda, no one else was supposed to be at her apartment.

¶ 10 Amanda knew that defendant had used drugs in the past, but he told her “he was clean.”

Amanda normally worked from midnight until 8 a.m., but she left work early on February 18,

2018, after receiving a phone call from her mother telling her that B.L. was in protective custody

with the Department of Children and Family Services (DCFS). DCFS called Amanda’s mother

because defendant would not give DCFS Amanda’s contact information. B.L. was not actually in

protective custody but was with defendant when Amanda left work. When Amanda asked

3 defendant what happened, he told her “he got dehydrated and he passed out.” He denied

overdosing.

¶ 11 Defendant testified that he began dating Amanda in December 2017, but admitted he had

a short relationship with her several years earlier and that B.L. was “possibly” his son. On February

17, 2018, Amanda had to work, so defendant agreed to watch B.L. After dropping off Amanda at

work that evening, defendant picked up his half-brother, Shepherd, and took him back to Amanda’s

apartment with him and B.L. The three of them watched movies for a “little while.” When it was

“getting late,” defendant put a movie on for B.L. in his bedroom.

¶ 12 After that, defendant called someone to purchase heroin. Defendant met the seller “down

the street.” Upon returning to the apartment, defendant went into the bathroom, locked the door,

and injected the heroin. After that, defendant blacked out. When he regained consciousness, there

were paramedics around him, and he was taken to the hospital. Shepherd later came to the hospital

with B.L.

¶ 13 While defendant was in the bathroom using heroin, Shepherd was in the living room

watching T.V., and B.L. was in his bed watching a movie. Defendant admitted he had drugs and

drug paraphernalia, including at least one syringe, in the bathroom with him.

¶ 14 The trial judge found defendant guilty of child endangerment, stating that defendant “in

choosing to go into the bathroom and take heroin ***, which carries with it a known risk of

overdose, was endangering the health of his child.” The trial court rejected defendant’s argument

that B.L. was never in danger because Shepherd was present at all times, stating, “Joseph Shepherd

just happened to be there. Joseph Shepherd was under no obligation to remain there and watch the

child.” The trial court sentenced defendant to 18 months of probation and ordered him to complete

drug treatment. Defendant filed a motion to reconsider, which the court denied.

4 ¶ 15 II. ANALYSIS

¶ 16 Defendant appeals his conviction, arguing that the evidence was insufficient to prove him

guilty of endangering the life or health of a child.

¶ 17 “In reviewing the sufficiency of the evidence, the question is whether, after viewing the

evidence in the light most favorable to the prosecution, any rational trier of fact could have found

the essential elements of the crime beyond a reasonable doubt.” (Emphasis in original.) People v.

Jordan, 218 Ill. 2d 255, 269 (2006).

¶ 18 The Criminal Code of 2012 (Code) provides:

“A person commits endangering the life or health of a child when he or she knowingly:

(1) causes or permits the life or health of a child under the age of 18 to be endangered; or

(2) causes or permits a child to be placed in circumstances that endanger the child’s life or

health.” 720 ILCS 5/12C-5(a) (West 2018).

When a defendant is charged in the alternative with child endangerment under both subsections

(1) and (2), evidence of an actual injury is not required. See People v. Melton, 282 Ill. App. 3d

408, 417 (1996); People v. Wilkenson, 262 Ill. App. 3d 869, 874-75 (1994). “[B]y its plain

meaning, the term [endanger] refers to a potential or possibility of injury.” People v. Collins, 214

Ill. 2d 206, 215 (2005). “The term does not refer to conduct that will result or actually results in

harm, but rather to conduct that could or might result in harm.” Id.

¶ 19 “A person is said to act knowingly when he is consciously aware that his conduct is

practically certain to cause the offense defined in the statute.” Melton, 282 Ill. App. 3d at 417.

Knowledge, by its very nature, is ordinarily proven through circumstantial evidence, rather than

direct proof. Id. The State must present sufficient evidence from which an inference of knowledge

can be made. Id. (citing People v. Weiss, 263 Ill. App. 3d 725, 731 (1994)). The defendant need

5 not admit knowledge for the trier of fact to conclude that he acted knowingly. Id. at 417-18 (citing

People v. Rader, 272 Ill. App. 3d 796, 806 (1995)).

¶ 20 In Jordan, 218 Ill. 2d at 259, the State charged the defendant with endangering the life and

health of a child when he “ ‘knowingly and without legal justification left his child *** unattended

in a motor vehicle with an outside temperature of 22° and a windchill of 12° for approximately

one hour.” At the time, the Code contained “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). Our supreme court found that presumption

unconstitutional. Jordan, 218 Ill. 2d at 266.

¶ 21 Nevertheless, the supreme court affirmed the defendant’s conviction, finding that

“a rational trier of fact could have found that defendant knowingly endangered his infant

daughter’s life or health by leaving her unattended in his vehicle, taking into account the

setting where defendant’s vehicle was parked, the weather conditions, and the amount of

time defendant left his daughter alone in the vehicle.” Id. at 272.

The court explained:

“[I]t is an unfortunate fact of modern urban life that the more populated the area,

the greater the likelihood that some ill will befall a young child who is left

unattended in a public place. A young child unattended in a public setting is easy

prey for social predators who may happen by. Legal reporters in our law libraries

are rife with tragic examples confirming this observation. The danger is no less real

because the actual occurrence of such an incident is a random event. *** [L]eaving

a child unattended in a public place exposes the child to the danger posed by those

in our society who may harm the child. We believe that too is a matter of common

6 sense. It should also be obvious that the more populated the environment, and the

longer the time the child is left alone, the greater the exposure to that danger.

In this case, the witnesses all testified that the parking lot in question was a

public lot adjacent to the college. Defendant himself described the location as a

‘pretty big lot.’ It follows that there would be a significant number of people in the

general vicinity of the unattended child. Given the circumstances, we believe a

rational trier of fact might well have found that defendant knowingly endangered

his daughter by leaving her unattended for as long as 40 minutes in a public place,

thus exposing her to unacceptable risks of harm from passersby.” Id. at 271-72.

The supreme court focused on the totality of the circumstances in determining that the evidence

was sufficient to support defendant’s conviction of child endangerment. See id.

¶ 22 In Wilkenson, 262 Ill. App. 3d at 871-72, the State charged the defendant with child

endangerment for holding a butter knife with a three-to-four-inch blade to the throat of her seven-

month-old baby. The defendant claimed that “merely holding a butter knife to the child did not

endanger her life since the statute requires an actual injury.” Id. at 874. The appellate court

disagreed, stating that “endangering the life of a child involves placing the child’s life into danger

of probable physical or mental damage” but does not require “actually damaging, harming, or

hurting that child’s health.” Id. at 874-75. The court ruled that the defendant was proven guilty

beyond a reasonable doubt of child endangerment because holding a knife to the throat of a child

is the “type of conduct *** clearly proscribed in the statute.” Id. at 875-76.

¶ 23 In Melton, 282 Ill. App. 3d at 411, five codefendants resided in an apartment in Chicago

with their 19 children, ranging in age from 17 months to 14 years old. In the living and dining

rooms, witnesses observed children clothed in only dirty underwear or dirty diapers, sleeping on

7 two bare, filthy mattresses, sharing a few dirty blankets crawling with cockroaches and one dirty,

stained pillow. Id at 412. The kitchen was covered with garbage and infested with cockroaches.

Id. Additionally, there were “piles of dirty, damp and crusty clothes all over the apartment.” Id.

The appellate court ruled that the evidence was sufficient to establish the defendants committed

child endangerment when they “made a ‘conscious choice’ to live in conditions which the trial

court stated were not even fit for animals, and to expose the children to these conditions, as well.”

Id. at 418. The court stated: “Based on the graphic testimonial and photographic evidence

presented at trial, a trier of fact could reasonably infer that the defendants willfully caused or

permitted their children’s lives or health to be endangered, or to be placed in circumstances that

endangered their lives or health.” Id.

¶ 24 Finally, in People v. Belknap, 396 Ill. App. 3d 183, 204 (2009), the defendant was charged

with causing or permitting a child to be placed in circumstances that endangered her life or health

when he used illegal narcotics and failed to provide necessary care and medical attention to the

child in his care. Evidence showed that the defendant had been taking methamphetamines and not

sleeping for several days when he hit the child in the head four or five times, causing bleeding and

swelling in her brain, leading to her death. Id. The court concluded that, under the circumstances,

“the evidence was sufficient to prove the defendant guilty of endangering the life or health of a

child.” Id.

¶ 25 Here, a reasonable trier of fact could have found that defendant knowingly caused B.L. to

be placed in circumstances that endangered his life or health when he made a conscious choice to

inject heroin while he was caring for B.L. Using heroin while a child is in one’s care exposes the

child to inherent danger in many ways. See Jones v. State, 2016-KA-01305-COA (¶ 20) (Miss.

2018), including (1) neglect of the child by the drug-using caregiver (see White v. State, 547

8 N.E.2d 831, 836 (Ind. 1989)), (2) an increased likelihood that the child will try drugs (see id.; State

v. Bossert, 2015 UT App 275, ¶¶ 31-35, 362 P.3d 1258; (3) giving a child access to illegal drugs

(see Carosi v. Commonwealth, 701 S.E.2d 441, 446-47 (Va. 2010)), (4) violent behavior by the

drug user (see Belknap, 396 Ill. App. 3d at 204), (5) loss of consciousness by the drug user (see

Meza v. State, 549 S.W.3d 672, 687 (Tex. Crim. App. 2017)), (6) impaired driving by the drug

user (see In re B.G.W., 154 P.3d 148, 158 (Or. Ct. App. 2007) (causing a “rollover car accident”)),

and (7) ingestion of drugs by a child (see Bossert, 2015 UT App 275, ¶¶ 31-35).

¶ 26 Defendant argues, as he did in the trial court, that he did not endanger B.L. because

Shepherd was with B.L. at all times. We disagree. First, as the trial court stated, Shepherd was not

B.L.’s caregiver and was under no obligation to remain with B.L. Amanda testified that she did

not give anyone other than defendant permission to be in her apartment with B.L. She did not ask

Shepherd to care for or supervise her child. Furthermore, Shepherd’s presence could not eliminate

all the dangers resulting from defendant’s drug use.

¶ 27 Illegal drug use by a parent or caregiver supports the conclusion that a child’s physical and

emotional well-being is endangered. In re J.T.G., 121 S.W.3d 117, 125 (Tex. App. 2003) (citing

In re S.D., 980 S.W.2d 758, 763 (Tex. App. 1998)). “[T]he illegal use of drugs *** has been found

to endanger children when done in their presence.” Bean v. State, 818 N.E.2d 148, 151 n.3 (Ind.

Ct. App. 2004). “[E]xposure of a dependent to an environment of illegal drug use poses an actual

and appreciable danger to that dependent and thereby constitutes neglect ***.” White, 547 N.E.2d

at 836. A parent’s drug use can affect his or her ability to parent, as well as a child’s safety and

wellbeing. See B.G.W., 154 P.3d at 158.

¶ 28 Caregivers have been found guilty of child endangerment when they possess or allow

someone else to possess illegal drugs in a home where children are present. See Carosi, 701 S.E.2d

9 at 447-48 (caregiver guilty of child endangerment where she knowingly permitted child to be

present in home where illegal drugs were kept unsecured in area accessible to child); State v. Perry,

725 N.W.2d 761, 766 (Minn. Ct. App. 2007) (grandmother guilty of child endangerment where

she permitted grandchildren to remain in home where daughter possessed and sold drugs). “[O]ne

‘endangers a child’s person or health by knowingly causing or permitting the child to be present’

with *** drugs.” Jones, 2016-KA-01305-COA (¶ 20) (Miss. 2018) (quoting Miss. Code Ann.

§ 97-5-39(4)(a) (2014)).

¶ 29 Here, defendant possessed heroin in close vicinity to B.L. and used it while B.L. was in his

care and custody. Defendant overdosed, leaving B.L. without his appointed caregiver. When an

officer and paramedics arrived, they found B.L. sitting on the couch near the bathroom where

defendant was laying with blood on his face and barely breathing. Also in the bathroom were

several bags of drugs and syringes. When the first dose of Narcan did not revive defendant,

paramedics had to cut off defendant’s clothes, place a monitor on his chest, and provide defendant

Narcan intravenously. When defendant came to, he was combative and had to be restrained before

being placed on a stretcher and carried out of the apartment building.

¶ 30 Based on the totality of these circumstances, it was reasonable for the trier of fact to

conclude that defendant knowingly caused B.L. to be placed in circumstances that endangered his

life or health.

¶ 31 III. CONCLUSION

¶ 32 For the foregoing reasons, the judgment of the circuit court of Kankakee County is

affirmed.

¶ 33 Affirmed.

10 No. 3-19-0366

Decision Under Review: Appeal from the Circuit Court of Kankakee County, No. 18-CM- 172; the Hon. Clark Erickson, Judge, presiding.

Attorneys James E. Chadd, Thomas A. Karalis, and Adam N. Weaver, of for State Appellate Defender’s Office, of Ottawa, for appellant. Appellant:

Attorneys Jim Rowe, State’s Attorney, of Kankakee (Patrick for Delfino, Thomas D. Arado, and Korin I. Navarro, of State’s Appellee: Attorneys Appellate Prosecutor’s Office, of counsel), for the People.