Bowers v. State

• Decision Date: 10 November 1977
• Docket Number: No. 101,101
• Citation: 379 A.2d 748,38 Md.App. 21
• Parties: Betty BOWERS and Hobart Bowers v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 21

38 Md.App. 21

379 A.2d 748

Betty BOWERS and Hobart Bowers v. STATE of Maryland.

No. 101.

Court of Special Appeals of Maryland.

Nov. 10, 1977.

Harriette Cohen, Assigned Public Defender, with whom was Alan H. Murrell, Public Defender on the brief, for appellants.

Stephen B. Caplis, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Warren B. Duckett, Jr., State's Atty. for Anne Arundel County, and Ronald Naditch, Asst. State's Atty. for Anne Arundel County, on the brief, for appellee.

Argued before POWERS, ^* MELVIN and MASON, JJ.

MELVIN, Judge.

On August 18, 1976, the appellants, Betty Bowers (Betty) and Hobart Bowers (Hobart), were found guilty by a jury in the Circuit Court for Anne Arundel County of violating Maryland's Child Abuse Statute. The convictions arose from an incident that occurred on February 25, 1976, in which Betty's 15 year old daughter, Patricia, was beaten with a belt when Betty and Hobart learned that she had played hookey from school that day. At the same trial, Hobart was also found guilty of raping Patricia on February 23, 1976. Following the trial, the trial court granted Hobart's motion for a new trial as to the rape charge. The trial court then accepted Hobart's guilty plea to a charge of carnal knowledge contained in a separate information filed by the State's Attorney and the rape charge was nol prossed. The carnal knowledge charge arose out of the same incident that allegedly occurred on February 23, 1976.

Timely appeals were filed by both appellants from the judgments of conviction of child abuse. No appeal was filed by Hobart from the judgment of conviction of carnal knowledge. Appellants present six questions for our review. Two of the questions relate solely to Hobart's conviction of carnal knowledge. As he took no appeal from that conviction, those questions are not properly before us and we do not consider them. The other four questions will be considered in the order presented.

I

"Is the Maryland Child Abuse Statute . . .

unconstitutionally vague and indefinite?"

The statute under consideration is codified in the Maryland Code (1976 repl. vol.) as § 35A of Article 27. In relevant part it provides as follows:

"(a) Penalty. Any parent, adoptive parent or other person who has the permanent or temporary care or custody or responsibility for the supervision of a minor child under the age of eighteen years who causes abuse to such minor child shall be guilty of a felony and upon conviction shall be sentenced to not more than fifteen years in the penitentiary.

(b) Definitions. Wherever used in this section, unless the context clearly indicates otherwise:

7. "Abuse" shall mean any: (A) physical injury or injuries sustained by a child as a result of cruel or inhumane treatment or as a result of malicious act or acts by any parent, adoptive parent or other person who has the permanent or temporary care or custody or responsibility for supervision of a minor child . . .."

(a)

Both appellants contend that the words "cruel or inhumane treatment" contained in the definition of "abuse" are not sufficiently definite to define the conduct proscribed, and that "those terms have a wide range of (dictionary) meanings and that men of common intelligence could clearly differ as to what sort of conduct falls within the various meanings . . .."

The test for determining whether a statute is so vague as to be unconstitutional under the due process clause has been set out by this Court in Lashley v. State, 10 Md.App. 136, 142, 268 A.2d 502, 506 (1970), cert. denied, 259 Md. 733 (1970), appeal dismissed, 402 U.S. 991, 91 S.Ct. 2169, 29 L.Ed.2d 158 (1971), wherein Chief Judge Murphy (now Chief Judge of the Court of Appeals) said:

"The requirement of a reasonable degree of certainty in legislation, especially in the criminal law, is a well established element of the guarantee of due process of law. No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes. All are entitled to be informed of what State law commands or forbids; consequently, a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law. Lanzetta v. New Jersey, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888; Connally v. General Construction Co., 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322."

While it is settled that a "reasonable degree of certainty in legislation" is required, it is equally well settled that, as we said in Bacheller v. State, 3 Md.App. 626, 632, 240 A.2d 623, 626 (1968), "(t)he formulation of statutory language is, at best, an inexact exercise vulnerable to varying degrees of doubt and ambiguity". As the Court of Appeals said in State v. Magaha, 182 Md. 122, 32 A.2d 477 (1943):

"It is desirable, of course, that penal statutes and ordinances should be expressed in language as specific as the subject matter will permit, but it is obviously impossible to define some types of crime by a detailed description of all possible cases that may arise. The prohibited act may be characterized by a general term without definition, if the term has a settled common-law meaning and a commonly understood meaning which does not leave a person of ordinary intelligence in doubt as to its purport, even though there may be in the definition of the term an element of degree as to which estimates of reasonable men might differ." 182 Md. at 129-130, 32 A.2d at 480.

Consonant with these principles is the following language of the Supreme Court in Jordan v. De George, 341 U.S. 223, 231, 71 S.Ct. 703, 708, 95 L.Ed. 886 (1951):

"We have several times held that difficulty in determining whether certain marginal offenses are within the meaning of the language under attack as vague does not automatically render a statute unconstitutional for indefiniteness. United States v. Wurzbach, 280 U.S. 396, 399, 50 S.Ct. 167, 74 L.Ed. 508 (1930). Impossible standards of specificity are not required. United States v. Petrillo, 332 U.S. 1, 67 S.Ct. 1538, 91 L.Ed. 1877 (1947). The test is whether the language conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices. Connally v. General Construction Co., 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322 (1926)."

Applying the above principles to the case at hand we hold that the terms "cruel or inhumane treatment" in the context of the statute as a whole are not so vague and indefinite as to render the statute void for vagueness. Each term has "a settled common-law meaning and a commonly understood meaning which does not leave a person of ordinary intelligence in doubt as to its purport, even though there may be in the definition of the term an element of degree as to which estimates of reasonable men might differ." State v. Magaha, supra.

In State v. Fabritz, 276 Md. 416, 348 A.2d 275 (1975), the Court of Appeals construed the statute, as amended in 1973, as reflecting the legislative intent to broaden the area of proscribed conduct in child abuse cases. In Fabritz, the Court held that where a mother's failure to obtain medical assistance for her child, known by the mother to have been severely beaten by another, caused the child to sustain bodily injury additional to and beyond that inflicted upon the child when originally assaulted, the evidence was sufficient under the circumstances to permit a conviction under the statute. The Court said:

" . . . (I)n these circumstances Virginia's treatment of Windy was 'cruel or inhumane' within the meaning of the statute and as those terms are commonly understood." (Emphasis added.) Id. at 426, 348 A.2d at 281.

Thus, although the constitutionality of the statute was not an issue in Fabritz, we regard the above quoted statement by the Court as authority for the proposition that the terms "cruel or inhumane treatment" as used in the statute do indeed have a commonly understood meaning. Their use to describe the forbidden conduct does not, therefore, render the statute void for vagueness. Jordan v. De George, State v. Magaha, both supra. Our conclusion in this regard is fortified by decisions in other jurisdictions where similarly or even more vaguely worded child abuse statutes have survived void-for-vagueness attacks. See, e. g., State v. Fahy, 201 Kan. 366, 440 P.2d 566 (" . . . (S)uch words as torture, beat, abuse, cruel punishment or inhuman punishment are hardly vague." (Emphasis supplied)); Campbell v. State, 240 So.2d 298 (Fla.) ("unnecessarily or excessively chastises"); People v. Curtiss, 116 Cal.App.Supp. 771, 300 P. 801 ("unjustifiable" treatment of child); Hunter v. State, 360 N.E.2d 588 (Ind.App.) ("unnecessary" punishment or infliction of pain).

(b)

As part of their void-for-vagueness argument, appellants further contend that the statute "does not clearly define or name the class of persons to whom it applies". By its terms the statute applies to, "Any parent, adoptive parent or other person who has the permanent or temporary care or custody or responsibility for the supervision of a minor child . . .." This language is sufficiently explicit, we think, to inform a person of ordinary intelligence whether or not he comes within the class of persons against whom the statute is directed, and this is enough to defeat a claim of unconstitutional vagueness.

Appellants in their brief suggest, "An argument could be made that the language is so broad that it would apply to a babysitter, as well as to a 16 year old boy on a date with a 15 year old girl." To this argument we find apposite what was stated by the Supreme Court of Illinois in People v. Vandiver, 51 Ill.2d 525, 529, 283 N.E.2d 681, 683 (1971):

"To support his contention that the statute is vague the defendant poses several questions such as: 'Would a parent be violating the statute if he permitted his...