People v. Penning

2021 IL App (3d) 190366Opinion filed May 26, 2021
____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
2021
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,
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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
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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.
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¶ 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
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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
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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
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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
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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
9at 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.
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No. 3-19-0366
Cite as: People v. Penning, 2021 IL App (3d) 190366Decision 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.
11