Appeal from the Circuit Court of Lake County; the Hon. William
Block, Judge, presiding.
JUSTICE UNVERZAGT DELIVERED THE OPINION OF THE COURT:
The defendant was charged in Lake County by amended information with three counts of aggravated battery to a child (Ill. Rev. Stat. 1981, ch. 38, par. 12-4.3) and one count of cruelty to children and others. (Ill. Rev. Stat. 1981, ch. 23, par. 2368.) The jury was instructed on those two offenses, as well as the offenses of endangering life or health and reckless conduct. (Ill. Rev. Stat. 1981, ch. 23, par. 2354; ch. 38, par. 12-5.) It found the defendant not guilty of aggravated battery and endangering life or health, and guilty of cruelty to children and reckless conduct. After argument on defendant's post-trial motion, the trial court vacated its judgment entered on reckless conduct, and sentenced the defendant to the Department of Corrections for two years on the cruelty-to-children-conviction.
Defendant appeals, raising these issues: (1) whether the mental state required to be proved in order to convict a defendant of the offense of cruelty to children and others is willfulness; (2) whether the classification and punishment provisions of the offense of cruelty to children and other deny equal protection; (3) whether the court abused its discretion in imposing a sentence of imprisonment.
Our resolution of the first issue compels us to reverse the cause without remand and makes consideration of the other two issues unnecessary. A detailed recitation of the facts is likewise unnecessary. It will suffice to say that the charges against defendant were brought after the defendant's stepson, 2 1/2-year-old Michael Masterson, suffered permanent and extensive injuries from burns which occurred while he was being bathed by the defendant.
Count III of the information in the case at bar charged the defendant "committed the offense of CRUELTY TO CHILDREN in violation of Illinois Revised Statute Chapter 23, Section 2368 in that the said defendant, the stepfather of Michael Masterson, a child under the age of 17 years and under the legal control of Dennis C. Miller, recklessly injured the health or limb of Michael Masterson, in that he, Dennis C. Miller, placed Michael Masterson in a hot tub of water causing severe burns to approximately 50% of Michael Masterson's body * * *."
The defendant tendered instructions at trial which would have required the jury find he acted wilfully in causing injury to his stepson. The court refused those instructions, accepting instead the State's instructions which required it prove the defendant acted only recklessly. Illinois Pattern Jury Instructions (IPI), Criminal, Nos. 11.23, 11.24 (2d ed. 1981).
In count I of a timely post-trial motion to quash the judgment on the verdict, the defendant alleged both the information charging him with cruelty to children and the jury instructions regarding that offense were erroneous in that they failed to set forth the correct mental state of willfulness. The court denied the motion, and the defendant timely appealed.
During trial, after trial, and in this appeal defendant has consistently contended that the mental state which must be proved in order to sustain a conviction for cruelty to children is willfulness, not recklessness.
Section 53 of "An Act to revise the law in relation to criminal jurisprudence" (Ill. Rev. Stat. 1981, ch. 23, par. 2368) 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."
The defendant acknowledges that the court in People v. Smith (1978), 60 Ill. App.3d 403, construed that the words "wilfully and unnecessarily" as used in the statute modify only the verb "expose," and that the conduct under the remainder of the statute relating to injury to the person in any other manner may be performed with any of the mental states of intent, knowledge, or recklessness. Ill. Rev. Stat. 1981, ch. 38, pars. 4-3(b), 4-4, 4-5, 4-6; see also People v. Virgin (1978), 60 Ill. App.3d 964, 967.
Defendant argues, however, the phrase "in any other manner" should be construed to indicate the means by which the child was injured, rather than the mental state of the offender. He argues that this court's decision in People v. Herr (1980), 87 Ill. App.3d 819, impliedly supports his position that willfulness is the mental state required under the statute.
The State points out that section 4-3(b) of the Criminal Code of 1961 provides that when a statute does not include a state-of-mind element, any of the mental states of intent, knowledge or recklessness as defined by the code is applicable. (Ill. Rev. Stat. 1981, ch. 38, pars. 4-3(b), 4-4, 4-5 and 4-6.) Therefore, the State argues, a correct state of mind (recklessness) was alleged and proved at trial, and the jury was properly instructed.
The State points out that even if the phrase "in any other manner" is construed as referring to the means by which the person is injured, no mens rea is thereby supplied and the ...