Anderson v. State

• Decision Date: 01 September 1984
• Docket Number: No. 77,77
• Citation: 487 A.2d 294,61 Md.App. 436
• Parties: Eric ANDERSON, Sr. v. STATE of Maryland. ,
• Court: Court of Special Appeals of Maryland

Page 436

61 Md.App. 436

487 A.2d 294

Eric ANDERSON, Sr. v. STATE of Maryland.

No. 77, Sept. Term, 1984.

Court of Special Appeals of Maryland.

Feb. 6, 1985.

John L. Kopolow, Asst. Public Defender, Baltimore (Alan H. Murrell, Public Defender, Baltimore, on brief), for appellant.

Stephanie J. Lane, Asst. Atty. Gen., Baltimore (Stephen H. Sachs, Atty. Gen., Kurt L. Schmoke, State's Atty. for Baltimore City and Charles Chiapparelli, Asst. State's Atty., Baltimore, for Baltimore City on brief), for appellee.

Submitted before MOYLAN, WILNER and BLOOM, JJ.

MOYLAN, Judge.

The key issue on this appeal is whether the enactment of the Child Abuse Law, Md.Code Ann. Article 27, § 35A (1957, 1982 Repl.Vol.), preempted a particular corner of the field of common law assault and battery and thereby repealed it. The significance to the appellant, Eric Anderson, Sr., is apparent. He was charged in a two-count indictment with 1) statutory child abuse and 2) common law assault and battery upon his eighteen-month-old son, Eric Anderson, Jr. A Baltimore City jury, presided over by Judge Mary Arabian, somehow found him not guilty of child abuse but guilty of assault and battery. Upon this appeal, he raises three contentions:

1) That the common law crime of assault and battery, in the factual context of this case, has been repealed by the enactment of the Child Abuse Statute;

2) That the trial judge erroneously permitted the introduction of the appellant's prior conviction for carrying a handgun; and

3) That the trial judge too austerely inhibited the offering of character evidence by the defense.

One of the varieties of criminal conduct embraced by the word "assault" or phrase "assault and battery" ¹ is a consummated battery. A battery is the unlawful application of force to the person of another. As the battery includes an assault, we will, as a linguistic convention, use the fuller expression "assault and battery." Assault and battery is a common law misdemeanor. Many common law jurisdictions, including Maryland, have supplemented the common law by statutes spelling out various aggravated assaults and batteries, frequently denominating them as felonies and frequently providing for enhanced punishment. ² For example, Article 27, § 12, established the felonies of assault with intent to rob, assault with intent to murder, and assault with intent to commit either rape or certain sexual offenses; Article 27, § 386, established the felony of assault with intent to maim or disfigure. These aggravated assaults embrace, but do not require, actual batteries. Other jurisdictions, again by way of example, single out for aggravated, statutory treatment (generally at the felony level) such aggravating circumstances as "assault with a dangerous or deadly weapon" and "assault which produces grievous bodily harm." W. LaFave & A. Scott, Handbook on Criminal Law 607 (1972).

Maryland's Child Abuse Statute is broader, in one respect, than an aggravated assault statute, but nonetheless partakes of such a statute in some of its essential characteristics. It is broader in that it does not require "a physical assault upon the child" or that "any physical force [be] applied by the accused individual." State v. Fabritz, 276 Md. 416, 424, 348 A.2d 275 (1975), cert. denied, 425 U.S. 942, 96 S.Ct. 1680, 48 L.Ed.2d 185 (1976). ³ The Child Abuse Statute is, on the other hand, more restrictive than common law assault and battery in that it focuses narrowly upon a discrete class of potential violators and a discrete class of victims. The statute's prohibition is directed at:

1) Any parent; or

2) other person who has the permanent or temporary care or custody or responsibility for the supervision of a child. ⁴

In this opinion, we will use the phrase "in loco parentis " to describe all members of the targeted class. The statute's protection, moreover, is afforded only to "a child," who is defined as "any individual under the age of 18 years." ⁵

Although, as was made clear by State v. Fabritz, supra, the Maryland Child Abuse Statute, since its amendment in 1973, ⁶ is broad enough to embrace some conduct which does not involve a literal assault and battery, it is nonetheless clear that the statute is aimed primarily at conduct which does involve an assault and battery. The nationwide reform movement in this area, which began in the late 1950's, ⁷ was generally characterized as a legislative response to the so-called "battered child syndrome." ⁸ Indeed, Maryland's initial response to the problem in 1963 was the enactment of an aggravated assault statute, at the felony level, entitled "Assault on Child." ⁹

What emerges is that the Child Abuse Statute, although applying only to victims under 18 and to defendants who stand in loco parentis, covers a part of the territory traditionally covered by common law assault and battery. The issue for decision is whether, within the area where the two proscriptions overlap, the statutory crime has displaced the common law crime or simply supplemented it. The resolution of the issue requires us to look to the common law crime of assault and battery itself and, more particularly, to the defenses, privileges, or justifications that come into play when the special relationship between child and one in loco parentis is involved.

As a defense, by way of justification, to what would otherwise be an assault and battery, an individual in loco parentis may sometimes, but not always, establish that the force used upon the child was privileged as necessary and proper to the exercise of domestic authority. The text writers treat this subject of privileged force under the label "Domestic Authority" as a subdivision within the broader topic "Justification and Excuse." It still covers such relationships as parent-child and schoolteacher-pupil, although other and earlier exercises of domestic authority involving relationships such as master-apprentice and husband-wife have been relegated to the dustbin of history. W. LaFave & A. Scott, supra, treats the subject, at 389-390:

"The parent of a minor child is justified in using a reasonable amount of force upon the child for the purpose of safeguarding or promoting the child's welfare. Thus the parent may punish the child for wrongdoing and not be guilty of a battery or of a violation of a statute punishing cruelty to children if the punishment is inflicted for this beneficent purpose, and if the punishment thus inflicted is not excessive in view of all the circumstances (including the child's age, sex, health, his misconduct on the present occasion and in the past, the kind of punishment inflicted, and the degree of harm done to the child thereby). The parent's right to use reasonable force has been extended to those, not parents, who are 'in loco parentis'--such as a stepfather or even a paramour living with the child's mother without benefit of matrimony, a guardian, or the director of an orphanage."

R. Perkins, Criminal Law (2d ed. 1969), addresses the subject, at 987:

"Firmly recognized in the law, however, is the right of the parent to discipline his minor child by means of moderate chastisement. The right to correct an adopted child is the same as the right of a natural parent in this regard, and this authority has been extended even to one who has taken a child into his home to be brought up as a member of the family without formal adoption. Similarly a guardian may lawfully administer moderate chastisement for the correction of his ward."

The scholarly opinion of Judge Levine in Bowers v. State, 283 Md. 115, 389 A.2d 341 (1978), discussed this exercise of privileged force in promoting child discipline, at 283 Md. 126, 389 A.2d 341:

"Long before the advent of contemporary child abuse legislation, it was a well-recognized precept of Anglo-American jurisprudence that the parent of a minor child or one standing in loco parentis was justified in using a reasonable amount of force upon a child for the purpose of safeguarding or promoting the child's welfare."

The common law notion of privileged force as a defense to what would otherwise be assault and battery has two clear limitations. The first, so taken for granted that it tends to be neglected by the case law and legal literature, is that the force truly be used in the exercise of domestic authority by way of punishing or disciplining the child--for the betterment of the child or promotion of the child's welfare--and not be a gratuitous attack. ¹⁰ The second limitation, and that which has commanded almost all of the law's attention, is that the amount of force used be moderate and reasonable. Almost all of the discussions assume, in passing, the satisfaction of the first condition and lavish total attention upon the second. In discussing the requirement that punishment be moderate, R. Perkins, supra, observes, at 988:

"The authority of a parent or teacher to punish a child will not justify immoderate punishment, and any excess of this nature will constitute an assault and battery; but the test of unreasonableness in this regard should be found, not in some slight error of judgment as to the force to be used, but in the substitution of a malicious desire to inflict pain in place of a genuine effort to correct the child by proper means."

Once again, the definitive treatment in Maryland of this limitation on the parental privilege to instances where the discipline or punishment remains within the bounds of moderation, is found in Bowers v. State, supra, at 283 Md. 126, 389 A.2d 341:

"So long as the chastisement was moderate and reasonable, in light of the age, condition and disposition of the child, and other surrounding circumstances, the parent or custodian would not incur criminal liability for assault and battery or a similar offense."

Where, on the other hand, the chastisement becomes immoderate, it defeats the parental privilege and is treated as an ordinary assault and battery, as if perpetrated upon a...