People v. Jordan

Docket No. 99895.

IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS

THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v.
CHRISTOPHER JORDAN, Appellee.

Opinion filed January 20, 2006.

JUSTICE KARMEIER delivered the judgment of the court, with
opinion.
Chief Justice Thomas and Justices Freeman, McMorrow,
Fitzgerald, Kilbride, and Garman concurred in the judgment and
opinion.

OPINION

Defendant, Christopher Jordan, was charged in the circuit court of
Cook County with endangering the life and health of a child in
violation of section 12B21.6 of the Criminal Code of 1961 (the Code)
(720 ILCS 5/12B21.6 (West 2002)). Following a bench trial,
defendant was found guilty and was placed on three months= court
supervision. He appealed, arguing that (1) the State failed to meet its
burden of proving that the child=s life or health was endangered by his
actions and (2) the child endangerment statute under which he was
convicted is unconstitutional. The appellate court held that the statute
contained an unconstitutional presumption, which was severable, and
the State=s evidence was otherwise insufficient to prove defendant
guilty beyond a reasonable doubt. Consequently, the appellate court
reversed the judgment of the circuit court. 354 Ill. App. 3d 294. We
allowed the State=s petition for leave to appeal. 134 Ill. 2d R. 317.

STATUTE INVOLVED
Section 12B21.6 of the Code provides as follows:
A(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 5/12B21.6(a), (b) (West 2002).

BACKGROUND
The complaint, as originally filed in this case, charged that the
defendant committed the offense of endangering the life or health of a
child in that he Aknowingly 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.@ On the
day of defendant=s bench trial, the State was granted leave to amend
the complaint, striking that portion of the charge relating to weather
conditions, and rephrasing the pertinent portion of the charge to state
that defendant Awillfully caused or permitted the life or health@ of his
child Ato be endangered by leaving the child unattended in a vehicle
for over ten minutes.@ Defendant did not object to the amendment.
The complaint, in its original and amended form, alleged that
defendant violated subsection (a) of section 12B21.6 of the Code.
Defendant was tried before the court on June 27, 2003. At trial,
Reuben Tate testified that he was the supervisor of security at
Truman College on February 5, 2003. On that date, in response to a
report he received, Tate proceeded to a parking lot on the campus
where, after approximately 10 minutes of searching, he located an
infant left alone in a vehicle. The infant was crying. Tate estimated

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that the infant was less than four months old. The outside air
temperature was Aaround the twenties.@
Tate could not get into the car because the doors were locked and
the windows were shut, so he directed his staff to call the fire
department. Fire department personnel arrived approximately 10
minutes after he first located the child, and two police cars arrived
approximately 10 minutes after the arrival of the fire truck. After the
firefighters opened the car door, they removed the infant, and took
her to an ambulance, where her vital signs were checked. Tate stated
that it was approximately 30 minutes or more between the time he
arrived at the vehicle and the time fire department personnel removed
the infant. Defendant did not appear on the scene until after the child
had been removed to the ambulance.
Under cross-examination, Tate admitted he had estimated
response times. Because the baby was crying, his attention was
focused on the baby. He said the infant was located in a vehicle in the
back of the main student parking lot, between 200 and 400 feet from
the entrance to the school. The child was dressed in a winter coat,
gloves, and a hat, and was covered with a blanket. Tate conceded he
had no information regarding the air temperature inside the vehicle.
Though the baby was crying, to his knowledge, the baby was
unharmed.
On redirect, the following colloquy occurred between the
prosecutor and Tate:
AQ. You know the child was left alone for 35 to 40
minutes because that=s what you told the media news *** ?
A. Right.
Q. You don=t know how long the child was left alone
before you got there?
A. That=s correct.
Q. You were there at least ten minutes?
A. Yes.
Q. You know the child was left for over ten minutes
because you were there for over ten minutes?
A. That=s correct.@
Officer Robert Hightower testified that he was on duty on
February 5, 2003, and on that date, he responded to a call at Truman

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College. The call concerned a child left alone in a motor vehicle.
Hightower estimated his response time at 10 minutes. When he
arrived, fire department personnel were already on the scene, and the
four-month-old infant was still in the vehicle. It was Avery cold@ that
day. Hightower testified that it took the fire department six to eight
minutes to get the baby out of the car after his arrival. Shortly after
the infant was moved to an ambulance, defendant approached and
identified himself as her father. Defendant said he had only been
away from the car for five minutes. Hightower stated that he had been
on the scene at least 12 minutes prior to defendant=s arrival.
Under cross-examination, Hightower described the parking lot
where the vehicle was located as Ahuge,@ and he noted that the car
was parked Avery far away@ from the school. Defense counsel asked
Hightower, AYou don=t know what the temperature inside of the
vehicle was, do you?@ Hightower responded, AI have no idea. It=s cold
enough to see your breath.@ Defense counsel then moved on to
another line of inquiry.
Defendant testified that he was a student at Truman College on
February 5, 2003, and he went there after 2 p.m. that day to get a
textbook at the college bookstore. According to defendant, he had
just come from his house, and his infant daughter was sleeping, so he
decided to leave her in his vehicle while he went into the school.
Defendant said his daughter was dressed in a Afull body jumpsuit[,] a
hood, gloves,@ and she was covered with Aa very thick wool blanket,@
with a small sheet under the blanket. Defendant described the weather
as windy, but Anot cold.@ Defendant said he parked approximately
one-half block from the door of the school. He described the area
where he parked as Athe front of the main parking lot.@ Defendant
admitted it was a Apretty big lot.@ According to defendant, it took him
about three minutes to get from his vehicle to the bookstore, which
was closed, and another three minutes to get back to his car. When he
returned, his daughter had just been taken out of his vehicle.
Under cross-examination the prosecutor asked defendant to
indicate the distance he walked to the entrance of the school and
repeatedly requested that he estimate the time it would have taken
him to walk that distance. From the record, it appears that defendant
estimated the distance involved as a little longer than the length of the
courtroom.

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 In closing argument, the prosecutor argued, primarily, the
rebuttable presumption of subsection (b) of section 12B21.6, focusing
on the time period during which the child was left alone in the
defendant=s vehicle. However, the prosecutor also touched briefly on
the weather conditions on the day of the incident. Defense counsel
offered his own time calculationBbased upon a report which
Hightower testified was erroneousBthat the child had been alone in
the car at most 20 minutes. Although defense counsel also focused on
the time element in his argument, he noted that the infant was dressed
warmly and there was no testimony that the child had suffered harm
from defendant=s conduct. Counsel concluded: AThis is a stupid act,
yes, not a criminal act.@
Prior to announcing its decision, the trial court summarized the
testimony of each witness, focusing primarily upon the timing of
events, but also mentioning the weather conditions on the day of the
offense alleged, the distance between defendant=s parked vehicle and
the school entrance, and the location of the vehicle in the parking lot.
The trial court concluded, simply: AI don=t believe [defendant] was
quite honest with this court. There is a finding of guilty.@
As previously noted, the trial court placed defendant on three
months= court supervision. Defendant filed a timely notice of appeal
on July 25, 2003. A computer printout in the common law record
suggests that the circuit court discharged defendant=s supervision on
April 12, 2004.
The appellate court filed its decision in this matter on December
8, 2004. 354 Ill. App. 3d 294. Relying principally upon our decision
in People v. Pomykala, 203 Ill. 2d 198 (2003), the appellate court
held that the rebuttable presumption set forth in subsection (b) of
section 12B21.6 is a mandatory presumption and is thus
unconstitutional. 354 Ill. App. 3d at 297-300. The court found
subsection (b) severable from the remainder of the statute (354 Ill.
App. 3d at 300), and went on to consider defendant=s argument that
the State=s evidence was insufficient to prove him guilty beyond a
reasonable doubt, ultimately concluding that the evidence was in fact
inadequate to support a finding of guilt. 354 Ill. App. 3d at 301.
ANALYSIS
As a threshold matter, we consider an issue raised for the first
time during oral argument: whether this appeal is moot because the

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circuit court apparently discharged defendant=s supervision prior to
filing of the appellate court=s judgment. Both parties have filed
supplemental briefs addressing this issue, and both maintain that the
case is not moot. We agree.
There is no question that nullification of a conviction may have
important consequences to a defendant, whether or not his attendant
sentence has been served. In such circumstances, Athe probability that
a criminal defendant may suffer collateral legal consequences from a
sentence already served precludes a finding of mootness.@ People v.
Jones, 215 Ill. 2d 261, 267 (2005) (entertaining defendant=s appeal
even though defendant might have Aalready served his sentence of
one year of conditional discharge@).
While A[d]ischarge and dismissal upon a successful conclusion of
a disposition of supervision shall be deemed without adjudication of
guilt and shall not be termed a conviction for purposes of
disqualification or disabilities imposed by law upon conviction of a
crime@ (730 ILCS 5/5B6B3.1(f) (West 2002)), there are nonetheless
important consequences associated with a disposition of court
supervision. For example, this court has held that charges resulting in
dispositions of supervision may be treated as prior committed
offenses for purposes of imposing subsequent penalties. See People v.
Sheehan, 168 Ill. 2d 298, 308-09 (1995) (AWe do not believe that
using an offense that resulted in *** supervision to enhance a
subsequent charge is inconsistent with the >without adjudication of
guilt= provision of the supervision statute. *** [T]he use of a prior
DUI violation resulting in supervision as an enhancing offense in
subsequent felony DUI proceedings is not a >disqualification or
disability imposed by law= and thus does not offend that portion of
the supervision statute@); People v. Johnson, 128 Ill. 2d 253, 286-87
(1989) (order of supervision may be used as evidence in aggravation
when imposing punishment for later conviction). Like the DUI statute
in Sheehan, the child endangerment statute speaks in terms of
Aviolations,@ rather than Aconvictions,@ and provides for an enhanced
penalty upon commission a second or subsequent Aviolation@ of the
statute. See 720 ILCS 5/12B21.6(d) (West 2002). Applying the
reasoning of Sheehan to the circumstances of this case, this defendant
would be subject to felony sentencing if he were ever to violate the
child endangerment statute in the future. Sentence enhancement
would be appropriate even though the disposition of supervision was

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Awithout adjudication of guilt@ and defendant was never Aconvicted@
of this offense Afor purposes of disqualification or disabilities
imposed by law.@ Pursuant to this court=s holding in Johnson, the
disposition of supervision could be used later as aggravating evidence
in sentencing for any subsequent offense. We note in passing, without
expressing either approval or disapproval, that recent appellate
decisions have upheld the adverse consideration of dispositions of
supervision in employment decisions. See Beard v. Sprint Spectrum,
LP, 359 Ill. App. 3d 315, 319-20 (2005); cf. Sroga v. Personnel
Board, 359 Ill. App. 3d 107, 111-14 (2005).
Clearly, a defendant subject to an order of supervision may suffer
collateral legal consequences as a result of that disposition. Thus, we
conclude this appeal is not moot.
Turning to the merits, we first address the constitutional question,
though it appears the parties now agree there is no genuine issue of
the statute=s constitutionality. In its briefing of this matter, the State
virtually conceded that the statutory presumption of subsection (b) is
an unconstitutional mandatory rebuttable presumption, as defendant
contends. In oral argument before this court, counsel for the State
explicitly conceded the point. Again, we agree with the parties. We
will briefly explain why.
Although the State is constitutionally required to prove every
element of a crime beyond a reasonable doubt (Jackson v. Virginia,
443 U.S. 307, 316, 61 L. Ed. 2d 560, 571, 99 S. Ct. 2781, 2787
(1979)), the State may nonetheless rely upon certain presumptions
and inferences to prove its case. Pomykala, 203 Ill. 2d at 202; People
v. Hester, 131 Ill. 2d 91, 98 (1989). Presumptions may be either
permissive or mandatory. A permissive presumption allows, but does
not require, the fact finder to infer the existence of the ultimate or
presumed fact upon proof of the predicate fact, without placing any
burden on defendant. Pomykala, 203 Ill. 2d at 203; People v. Watts,
181 Ill. 2d 133, 141-42 (1998). A mandatory presumption requires
the fact finder to accept the presumption. Pomykala, 203 Ill. 2d at
203; Watts, 181 Ill. 2d at 142.
Mandatory presumptions may be further classified as conclusive
(irrebuttable) or rebuttable. Pomykala, 203 Ill. 2d at 203; Watts, 181
Ill. 2d at 142. The United States Supreme Court has long held that
mandatory conclusive presumptions are unconstitutional because they

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conflict with the presumption of innocence accorded a criminal
defendant. See Sandstrom v. Montana, 442 U.S. 510, 521-23, 61 L.
Ed. 2d 39, 49-51, 99 S. Ct. 2450, 2458-59 (1979). The Supreme
Court has also held that mandatory rebuttable presumptions which
shift the burden of persuasion to the defendant are per se
unconstitutional because they relieve the State of its burden of
proving every element of the offense beyond a reasonable doubt.
Sandstrom, 442 U.S. at 524, 61 L. Ed. 2d at 51, 99 S. Ct. at 2459.
This court has held that a mandatory rebuttable presumption that
shifts the burden of production to a criminal defendant is also
unconstitutional because such a presumption could, in effect, require
a trial judge Ato direct a verdict against the defendant on the element
which is proved by the use of the presumption.@ Watts, 181 Ill. 2d at
147. Thus, under Illinois law, Aall mandatory presumptions are now
considered to be per se unconstitutional.@ Pomykala, 203 Ill. 2d at
204.
The statute at issue in this case provides: AThere is a rebuttable
presumption that a person committed the offense [of child
endangerment] if he or she left a child 6 years of age or younger
unattended in a motor vehicle for more than 10 minutes.@ (Emphasis
added.) 720 ILCS 5/12B21.6(b) (West 2002). In Watts, this court
stated that a Apresumption=s mandatory nature [was] clearly
demonstrated by its mandate that >it shall be a rebuttable
presumption.= A (Emphasis in original.) Watts, 181 Ill. 2d at 148,
quoting 815 ILCS 515/3(c) (West 1994). In this context, we see no
significant difference in the phrases Athere is@ and Ait shall be.@ In
each instance, the legislature=s intent to mandate application of a
rebuttable presumption is unmistakable. The State admits that the
phraseology of the statutory presumption in this case is Aalmost
identical@ to that used in the statute struck down in Watts. Neither
statute contains permissive language. We see no significant
difference between the language of this statutory presumption and the
one this court held unconstitutional in Watts. We hold that subsection
(b) of section 12B21.6 of the Code creates an unconstitutional
mandatory rebuttable presumption.
We find, however, that subsection (b) is severable from the
remainder of the statute. A statutory provision containing an
unconstitutional presumption may be severed from the rest of the
statute when what remains is complete in itself and is capable of

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being executed wholly independently of the severed portion.
Pomykala, 203 Ill. 2d at 209. Provisions are not severable if they are
essentially and inseparably connected in substance, such that the
legislature would not have passed the valid portions of the statute
absent the invalid portion. Watts, 181 Ill. 2d at 151.
As the State notes, subsection (a) of the current version of the
child endangerment statute contains all of the elements of the offense,
making it complete in itself and capable of being executed
independently of subsection (b). The legislature originally enacted
the child endangerment statute without the presumption in subsection
(b). Indeed, a form of the child endangerment statute was enacted in
1877 (1877 Ill. Laws 91, '4), and it has existed ever since in some
form (see generally Ill. Rev. Stat. 1959, ch. 38, par. 95; 720 ILCS
150/4 (West 1992)), without any attendant presumption. When the
current version of the statute was enacted in 1993 as section 12B21.6
of the Criminal Code, the statute contained only the elements of the
offense, now set forth in subsection (a), and the statutory
classification of the offense, in what is now subsection (d). See 720
ILCS 5/12B21.6 (West 1994). Subsection (b), containing the statutory
presumption, and subsection (c), defining Aunattended@ as used in
subsection (b), were not added to section 12B21.6 until the passage of
Public Act 92B515. Those amendments to the section 12B21.6 took
effect June 1, 2002. Thus, the offense of child endangerment existed
in its current form for over eight years without the presumption. It
existed in some form for well over a century without the
presumption. In Watts, this court found it compelling that the General
Assembly had originally passed the statute defining the offense at
issue in that case without a presumption, and only added the statutory
presumption six years later. Watts, 181 Ill. 2d at 151. In Watts, this
court struck the presumption of the statute, and left the remainder of
the statute intact and valid. Watts, 181 Ill. 2d at 151. We reach the
same result in this case.
Finally, we consider the consequences of the presumption=s
invalidity in this case. After holding the statutory presumption
unconstitutional, the appellate court summarized the trial evidence
and found it insufficient to Aconvict defendant of endangering the life
of a child under subsection (a).@ 354 Ill. App. 3d at 301. The appellate
court reversed the judgment of the trial court outright. 354 Ill. App.
3d at 301. We disagree with the appellate court=s assessment of the

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evidence, and its disposition of this matter.
First, we address the State=s contention that the presumption was
not applied in this case because the trial court did not mention it. On
this record, we simply cannot say that the presumption was not a
factor in the circuit court=s decision. The complaint in this case
charged defendant with endangering the life or health of his child by
leaving her unattended in a vehicle for over 10 minutes. Because of
the statutory presumptionBwhich everyone assumed was
constitutional in the absence of case authority to the contraryBthe
parties obviously focused their efforts on marshaling and presenting
evidence pertinent to the presumption, or refuting such evidence,
depending upon their interests. Their closing arguments also
acknowledged the presumption. There was then no case authority
holding the statutory presumption unconstitutional, and the State took
pains to tailor the complaint to the language of the presumption.
Accordingly, there is no reason to believe that the circuit court
ignored the parties arguments, and evidence adduced relative to the
presumption, and there is no reason to believe that the court did not
apply the mandatory presumption, if in fact the court believed that
defendant had left his child unattended in the vehicle for more than
10 minutes. We must presume that a trial judge knows and follows
the law unless the record demonstrates otherwise. See People v.
Blair, 215 Ill. 2d 427, 449 (2005).
Moreover, although we can safely assume that the circuit court=s
assessment of credibility played some part in the court=s decision, it is
impossible to tell from the record whether the trial court discounted
all of defendant=s testimony, or only part of it, when the court stated it
did not believe defendant Awas quite honest with this court.@ The
court did not explain in what respect defendant was not Aquite
honest,@ nor did the court render an assessment of the credibility of
any other witness. Only the trial judge heard the witnesses testify and
observed their demeanor during the trial. Circuit courts are in a
superior position to determine and weigh the credibility of witnesses,
observe their demeanor, and resolve conflicts in their testimony.
Jones, 215 Ill. 2d at 268. Because the trial court did not explain in
what respect it found defendant=s testimony less than credible, we
cannot tell whether that assessment relates to the unconstitutional
presumption or some independent and proper aspect of the case.

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 With these preliminary observations, we next address the
appellate court=s determination, and the defendant=s contention, that
the evidence adduced at trial was insufficient to establish defendant=s
guilt beyond a reasonable doubt. 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. Jackson v. Virginia, 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573,
99 S. Ct. 2781, 2789 (1979); People v. Normand, 215 Ill. 2d 539, 549
(2005). That standard applies in all criminal cases, regardless of the
nature of the evidence. People v. Phillips, 215 Ill. 2d 554, 569-70
(2005). Examining the trial evidence in the light most favorable to the
State, we believe a rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.
A person violates the child endangerment statute when he or she
Awillfully cause[s] or permit[s] the life or health of a child *** to be
endangered or *** willfully cause[s] or permit[s] a child to be placed
in circumstances that endanger the child=s life or health.@ 720 ILCS
5/12B21.6(a) (West 2002). Willful conduct is synonymous with
knowing conduct. AConduct performed knowingly or with knowledge
is performed wilfully, within the meaning of a statute using the latter
term, unless the statute clearly requires another meaning.@ 720 ILCS
5/4B5(b) (West 2002). Thus, the State was required to prove that
defendant knew he was endangering the life or health of his child
when he left her alone in his vehicle that day. In People v. Collins,
214 Ill. 2d 206, 215 (2005), this court stated, Aby its plain meaning,
the term [>endanger=] refers to a potential or possibility of injury. 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.@
Applying these definitions in this context, we believe 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. Several factors bear upon that
determination including the setting where the vehicle was parked, the
weather conditions, and the amount of time defendant left his
daughter alone in the vehicle.
Testimony indicated that the child may have been left in the
defendant=s Jeep for as long as 40 minutes on a windy day when the

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outside air temperature was in the twenties. Officer Hightower
admitted he did not know what the temperature was inside
defendant=s vehicle, but he said it was Acold enough to see your
breath.@ A rational trier of fact might well have found that, after 40
minutes in a parked vehicle with no source of heat, the health of
defendant=s four-month-old infant daughter was endangered by the
cold temperatures of that day, no matter how warmly she was
dressed.
Weather conditions aside, it 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. Our decision in Collins
illustrates the point. In Collins, we held that the discharge of a
firearm into the air endangered those on the ground in the vicinity of
the discharge:
AThe inherent danger caused by the reckless discharge of a
firearm into the air, and the obvious ricochet effect that may
occur when the bullets fall to the ground, are matters of
common sense. In this case, what inevitably came down
endangered *** those in the vicinity of the discharge.@
Collins, 214 Ill. 2d at 218.
As a practical matter, the likelihood that a specific individual will be
struck by a bullet falling to the ground may not be that great;
however, we accept the existence of that danger as a matter of
Acommon sense.@ So too, leaving 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 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 Apretty big lot.@ It follows that there would
be a significant number of people in the general vicinity of the

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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.
In sum, we find 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. We emphasize that the foregoing examination of the
evidence was conducted in response to defendant=s reasonable doubt
argument; therefore, we have reviewed the evidence in the light most
favorable to the State, and without taking into account the probable
effect of the procedural error represented by the court=s consideration
of the statutory presumption.
On this record, we cannot say that use of the presumption in this
case was harmless error. In Pomykala, under similar circumstances,
this court rejected a harmless error argument, after finding a statutory
presumption unconstitutional, and remanded the cause for a new trial.
In Pomykala, as in this case, the State endeavored to tailor the
wording of the complaint to the language of the presumption, a
mandatory presumption that was assumed to be constitutional at the
time of trial, but was ultimately found unconstitutional. That
presumption was set forth in section 9B3(b) of the Criminal Code,
which provided as follows: AIn cases involving reckless homicide,
being under the influence of alcohol 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.@ See 720
ILCS 5/9B3(b) (West 2000). In Pomykala, the State charged
defendant with two counts of reckless homicide. Count I alleged that
defendant drove his vehicle in a reckless manner at a time when his
blood-alcohol concentration was greater than 0.08. Count II alleged
that defendant drove his vehicle in a reckless manner while under the
influence of alcohol.
At Pomykala=s trial, the jury heard evidence of his intoxication
and of his actions while driving his vehicle. The jury also heard
evidence that defendant=s brakes may have malfunctioned at the time

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of the accident. Further, the record contained evidence of defendant=s
knowledge that his brakes did not work properly all the time. The
jury was instructed that it was required to presume recklessness if the
State proved that defendant was under the influence of alcohol at the
time of his actions. That evidence was thus emphasized to the jury
over other evidence presented during the trial. The jury convicted
defendant on both counts of reckless homicide. Under those
circumstances, this court was unable to find that the error in
instructing the jury on the statutory presumption was harmless error.
We implicitly found that the evidence adduced at trial might have
sustained a conviction independently. See Pomykala, 203 Ill. 2d at
210-11. This court affirmed the appellate court=s reversal of
defendant=s conviction and remandment of the cause to the circuit
court for a new trial. Pomykala, 203 Ill. 2d at 211.
We believe the same disposition is appropriate in this case. There
is no doubt that the statutory presumption played a prominent,
perhaps determinative, part in the trial of this case. Although we find
that there was evidence sufficient to support a finding of guilt,
independent of the presumption, from this record, we are unable to
ascertain the extent to which the witnesses= credibility figured into
the circuit court=s ruling. Determinations of the credibility of
witnesses and the weight to be given to their testimony are
responsibilities that must be left to the trier of fact. People v.
Williams, 182 Ill. 2d 171, 192 (1998). Reversal for trial error is a
determination that a defendant has been convicted by means of a
judicial process defective in some fundamental respect People v.
Olivera, 164 Ill. 2d 382, 393 (1995). Use of a mandatory presumption
in a criminal case is such a defect in that it impermissibly shifts the
burden of proof. Since we have found that the evidence was sufficient
to support a finding of guilt, retrial of defendant would not constitute
double jeopardy. See People v. Placek, 184 Ill. 2d 370, 390-91
(1998); Williams, 182 Ill. 2d at 192-93. We draw no conclusion as to
guilt that would be binding upon retrial. 1 See People v. Roberts, 214

1
Since defendant has apparently completed his term of supervision, we
assume that the charges against him have been dismissed. See 730 ILCS
5/5B6B3.1(e) (West 2002) (where a Adefendant has successfully complied
with all the conditions of supervision, the court shall discharge the
defendant and enter a judgment dismissing the charges@). Upon remand, the

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Ill. 2d 106, 126 (2005).

CONCLUSION
For the reasons set forth herein, the judgment of the appellate
court is affirmed in part and reversed in part, and this cause is
remanded to the circuit court for a new trial.

Affirmed in part and reversed in part;
cause remanded.

charges will be reinstated solely for purposes of trial. They will be
dismissed after the trier of fact has made its finding on the issue of guilt.
Irrespective of the outcome of trial, defendant will not be subject to further
sentencing procedures.

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