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THIRD DIVISION
December 8, 2004

Following a bench trial, the court convicted defendant Christopher Jordan ofendangering the life and health of a child in violation of section 12-21.6 of the CriminalCode of 1961 (the Code)(720 ILCS 5/12-21.6 (West 2002)). Defendant appeals hisconviction, arguing that (1) the State failed to meets its burden of proving that thechild's life or health was endangered by defendant's actions and (2) the childendangerment 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 topick up a textbook at the college bookstore. His five-month-old daughter Dominiquewas in an infant car seat on the backseat of defendant's car. Given that Dominiquewas sleeping, defendant left Dominique in the car while he went into the college to pickup 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 fromcollege security, the fire department had removed Dominique from the car. Defendantwas placed under arrest after identifying himself as her father. He was charged withendangering 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 wasapproached by a woman who stated that she saw an infant alone in a car. He foundthe car at the rear of the parking lot after approximately 10 minutes of searching. Theinfant was crying. Tate could not get into the car because the doors were locked andthe windows were shut, so he had his staff call the fire department. The firedepartment arrived approximately 10 minutes after he placed the call, and two policecars arrived 10 minutes after that. The fire department got the car open and removedthe infant. She was taken to an ambulance and her vital signs were checked. Tatestated that it was 30 minutes or more between the time he arrived at the car and thetime the fire department removed the infant. The temperature was below freezing. Theinfant was dressed in a winter coat, with a hood and gloves, and was covered in ablanket. There was a full bottle in the car.

Officer Robert Hightower testified that he received a call at approximately 2:30p.m. about a child left alone in a motor vehicle. He arrived at the scene atapproximately 2:45 p.m. and found the fire department already there. It took the firedepartment six to eight minutes to get the infant from the car after Officer Hightowerarrived. It was so cold that you could see your breath in the air. Shortly after the infantwas moved to the ambulance, defendant approached and identified himself as herfather and said he had only been away from the car for five minutes. Officer Hightowerstated 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 defendantarrived at the school, Dominique was asleep. Defendant decided to leave Dominiquein the car because it was windy outside. He stated that it was not cold outside and thatshe was dressed "overly warm," in a full body suit with a hood, gloves and feet, and shewas covered with a thick wool blanket. He had parked approximately one-half milefrom the door of the school.

At the commencement of its closing argument, the State presented the court witha copy of section 12-21.6(b) of the Code, which states that "[t]here is a rebuttablepresumption that a person committed the offense if he or she left a child 6 years of ageor 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 andhealth of a child and sentenced him to three months' court supervision. Defendanttimely 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 processclause 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 itsburden 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) (West2002).

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

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

The United States Supreme Court has held that mandatory conclusivepresumptions do not pass constitutional muster because such presumptions directlyconflict with the presumption of innocence. Sandstrom v. Montana, 442 U.S. 510, 523,61 L. Ed. 3d 39, 50, 99 S. Ct. 2450, 2459 (1979). Likewise, the Supreme Court hasheld that mandatory rebuttable presumptions that shift the burden of persuasion to thedefendant are per se unconstitutional as they alleviate the State's burden to proveevery element of a crime beyond a reasonable doubt. Sandstrom, 442 U.S. at 524, 61L. Ed. 2d at 51, 99 S. Ct. at 2459. Our supreme court has subsequently held thatmandatory rebuttable presumptions that shift the burden of production to the defendantare also unconstitutional. Watts, 181 Ill. 2d at 147. Consequently, under Illinois law,all mandatory presumptions are now considered to be per se unconstitutional. Pomykala, 203 Ill. App. 3d at 204, 784 N.E.2d at 788.

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

In Pomykala, the defendant was convicted of reckless homicide after his vehiclehit an oncoming vehicle while he was driving under the influence of alcohol. Anonpattern jury instruction was given based on section 9-3(b) of the Code (720 ILCS5/9-3(b) (West 2000)). The instruction stated that if the jury found that the defendantwas operating his vehicle under the influence of alcohol at the time of the accident, itwas to presume that the defendant acted recklessly unless disproved by contraryevidence. Pomykala, 203 Ill. 2d at 202, 784 N.E.2d at 787. The statute provided:

" 'In cases involving reckless homicide, being under the influence ofalcohol 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, 784 N.E.2d at 787, quoting 720ILCS 5/9-3(b) (West 2000).

The defendant argued on appeal that section 9-3(b) created a mandatory presumptionthat violated his right to due process.

In resolving the defendant's challenge to the constitutionality of section 9-3(b),our supreme court looked at a prior version of section 9-3(b), which read:

" 'In cases involving reckless homicide, being under the influence ofalcohol or any other drug or drugs at the time of the alleged violation shall beprima facie evidence of a reckless act.' " Pomykala, 203 Ill. 2d at 204, 784N.E.2d at 788, quoting Ill. Rev. Stat.1991, ch. 38, par. 9-3(b).

The court noted that, in amending the statute, the legislature left out the term "primafacie" and instead incorporated the definition of "prima facie." The court went on to findthat section 9-3(b), as amended, contained an unconstitutional mandatory presumptionbecause the definition of "prima facie" as included necessitated "a finding ofrecklessness without any factual connection between the intoxication and the recklessact, unless this presumed connection is disproved." Pomykala, 203 Ill. 2d at 208, 784N.E.2d at 790.

The State argues that unlike Pomykala, the statute in question here does notcontain the phrase "shall be presumed." In the absence of the phrase "shall bepresumed," the presumption allows for, but does not require, the fact finder to make theinference and, therefore, the statute is permissive on its face.

The primary rule of statutory construction is to give effect to the intent of thelegislature. Pomykala, 203 Ill. 2d at 207, 784 N.E.2d at 790. In doing so, we must lookto the language used in the statute itself and give it its plain and ordinary meaning. Pomykala, 203 Ill. 2d at 207, 784 N.E.2d at 790.

The State correctly asserts that the statute in question here does not incorporatethe term "shall be presumed." Rather, the statute contains the language, "[t]here is arebuttable presumption." 720 ILCS 5/12-21.6(b) (West 2002). "There is" withoutqualifying language establishes the existence of the presumption and indicates that thepresumption is to be applied without any leeway for individual discretion. Furthermore,the phrase "rebuttable presumption" is defined as "an inference drawn from certain factsthat establish a prima facie case, which may be overcome by the introduction of contraryevidence." Black's Law Dictionary 1205 (7^th ed. 1999). Our supreme court in Pomykalainterpreted the language from the definition of "prima facie" " 'unless disproved by someevidence to the contrary' " as requiring the defendant to rebut the presumption. Pomykala, 203 Ill. 2d at 208, 784 N.E.2d at 790. Similarly here, a "prima facie" casewould be established upon the showing that a defendant left a child under the age of 6in a vehicle unattended for more than 10 minutes, which the defendant then would berequired to rebut. Looking at the language of the statute itself and giving it its plain andordinary meaning (Pomykala, 203 Ill. 2d at 207, 784 N.E.2d at 790), we believe thatsection 12-21.6(b) contains language of an impermissible mandatory rebuttablepresumption and is therefore unconstitutional.

We must next consider whether section 12-21.6(b) of the Code (720 ILCS 5/12-21.6(b) (West 2002)) may be severed from the remainder of the child endangermentstatute. We note that there is no specific severability provision applicable to thisstatute. However, we may sever a statute if what remains is complete in itself and isable to be executed wholly independent of the severed portion. Pomykala, 203 Ill. 2d at209, 784 N.E.2d at 791. Section 12-21.6(a) sets out all of the elements of the offense ofendangering the life or health of a child. 720 ILCS 5/12-21.6(a) (West 2002). Theexcision of subsection (b) does not impair the meaning or the operation of subsection(a) because subsection (b) merely operates to ease the State's burden of proof. Consequently, we conclude that subsection (b) may be severed from the remainder ofthe statute.

Defendant contends that should we find the presumption contained in the statuteto be unconstitutional and the unconstitutional provision to be severable, we mustreverse his conviction outright because the State did not meet its burden of showing thathe willfully caused or permitted his child's life or health to be endangered as required bysubsection (a).

When presented with a challenge to the sufficiency of the evidence, we mustdetermine, after viewing the evidence in the light most favorable to the State, if anyrational trier of fact could have found the essential elements beyond a reasonabledoubt. People v. Schott, 145 Ill. 2d 188, 203, 582 N.E.2d 690 (1991).

As previously discussed, subsection (a) states:

"(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." 720 ILCS 5/12-21.6(a) (West 2002).

Actual injury is not required to convict under subsection (a). People v.Wilkenson, 262 Ill. App. 3d 869, 874, 635 N.E.2d 463, 467 (1994). To convict forendangering the life of a child, "the person caring for the child must wilfully cause thatchild's life to be placed in danger of probable harm." Wilkenson, 262 Ill. App. 3d at 874,635 N.E.2d at 467. In other words, endangering the life of a child involves "placing thechild's life into danger of probable physical or mental damage." Wilkenson, 262 Ill. App.3d at 874, 635 N.E.2d at 467. .

Our review of the record in the instant case reveals that the State essentiallyproved, through the testimony of Ruben Tate and Officer Hightower, that: (1)defendant's daughter Dominique was four months old; (2) defendant left Dominique inthe car for approximately 35 to 40 minutes unattended; (3) Dominique was dressedwarmly in a snowsuit with a hood and gloves and feet and was covered in a thick woolblanket; and (4) the temperature outside the vehicle was slightly below freezing. Havingfound subsection (b) to be unconstitutional, we do not believe that the evidence offeredby the State in this case is sufficient to convict defendant of endangering the life of achild under subsection (a).

There was testimony that an ambulance was called to the scene after Dominiquewas discovered . Her vital signs were checked. However, there was no testimony thatDominique suffered probable physical or mental damage as a result of being left in thevehicle. Likewise, there was no testimony regarding the internal temperature of thevehicle which may have been conclusive evidence that defendant placed Dominique in circumstances that endangered her life or health. Accordingly, we find that the Statefailed to meet its burden of proof in this case. We therefore reverse the judgment of thetrial court.

Reversed.

HARTMAN and HOFFMAN, J.J., concur.