dissenting:
Although I agree with the majority’s reasoning in theory, I respectfully dissent from their decision. In my view, the State did not make its case. It did not prove beyond a reasonable doubt that it was unreasonable for the defendants, under the circumstances presented, to leave their small children in a cold car while they went to work. Readers note that I am not unsympathetic to the discomfort that might have been suffered by the children in their three hours in a dark and cold vehicle. Neither do I believe that a struggling working parent may make a cursory attempt to find child care and then be justified in leaving his or her child in a car while the parent shows up for a job that pays the rent and puts food on the table.
The readers of this case are unlikely to have ever been homeless or suffered in a helpless-state of poverty, yet at the heart of this case are two social problems which have increasingly received public attention in recent years: poverty and homelessness.
The facts are clear that the couple before us, convicted of a felony, were recently homeless and desperately in need of money to retain their housing, which they were trying to earn at a marginal labor. We are informed by the record that they have in fact since lost their housing. In this case, the critical question is whether it was proved beyond a reasonable doubt that it was unreasonable for these defendants, under their circumstances, to do what they did. Homelessness and poverty with marginal employment present facts that are important in determining reasonableness. Under section 53 (Ill. Rev. Stat. 1989, ch. 23, par. 2368), the burden on the question of reasonable necessity was the State’s. It had to prove each element of the felony charge beyond a reasonable doubt. People v. Lynch (1987), 151 Ill. App. 3d 987, 990.
This was not a case in which the evidence shows that the children were left in a car while the parents were working to afford a new television set or were out drinking or pursuing recreational interests. The State might well have met its burden of proof in this case had it offered evidence of persons who were ready, willing and able to watch the children on January 4. Similarly, the State might have shown that the defendants’ finances were such that they could have paid for child care or that one of them could have stayed home from work that evening. No such proof was offered, and without such proof the State has failed to prove that these defendants, under their circumstances, acted “unnecessarily.” The defendants appear to have been faced with leaving the children in the car for a few hours or being out on the street as a family in the near future. In my view, the State did not meet its burden of proof on an essential element of the offense, mandating reversal of the defendants’ convictions.