Fabritz v. State

• Decision Date: 21 February 1975
• Docket Number: No. 500,500
• Parties: Virginia Lynnette FABRITZ v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 708

24 Md.App. 708

332 A.2d 324

Virginia Lynnette FABRITZ v. STATE of Maryland.

No. 500.

Court of Special Appeals of Maryland.

Feb. 21, 1975.

Richard J. Clark, Assigned Public Defender, LaPlata, for appellant.

Alexander L. Cummings, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., and Warran F. Sengstack, State's Atty. for Calvert County, on the brief, for appellee.

Argued before MORTON, LOWE and MELVIN, JJ.

LOWE, Judge.

Virginia Lynnette Fabritz, a twenty year old mother, was tried by a jury in the Circuit Court for Calvert County for child abuse and assault and battery upon her now deceased daughter, Windy Lynn Fabritz. ¹ The State conceded, and the judge acknowledged in his instructions to the jury, that:

'The State has not attempted to prove in this case that the Defendant struck the blows or applied the blunt trauma as the doctor referred to it which caused the injuries, the initial injuries to this child and set in train the physical changes which ultimately resulted in its death.'

To the contrary, the evidence clearly showed that the child was in the custody of another at the time the injury was inflicted ² and a polygraph examination verified not only that she had not inflicted the injury, but that she did not know who did inflict it, nor suspect that it was going to happen. ³ Indeed her pastor, the associate pastor of St. Paul's United Church of Christ, indicated that 'She (M's. Fabritz) had a good relationship with Windy, Windy loved her and she loved Windy. It was obvious both vocally and by non-verbal communication'; and the Social Services Representative with the Department of Human Resources, who had known and worked with M's. Fabritz and Windy for a year described the mother-daughter relationship as a very good one.

'She always seemed concerned about Windy. I never even saw her angry at Windy. They seemed to be in good relation, they seemed to love each other very much and she always seemed concerned about the child's welfare. And always knew pretty much what the child was doing and exactly where the child was.'

The trial judge entered a judgment of acquittal as to the assault and battery, having found 'no evidence in this case of any hitting or assaulting of the child by this Defendant.'

The child abuse question, however, was permitted to go to the jury. The judge said:

'With respect to the analysis of the evidence as it applies to the abuse statute, we think that the statute intends to make a criminal act any positive abuse or any actions by a custodian of a child which amounts to cruel or unhumane treatment . . .. And the view the Court takes of the matter, a person who has the custody of an infant has a two-fold duty, that is to refrain from actively injuring the child himself which is an act which ought not to be done as well as an obligation which can not be avoided to take positive action to protect and care for the child. Those positive actions fall into several categories to provide it with necessary shelter and the necessary sustenance to sustain life as well as that medical attention which is available to protect it from the consequences of injuries no matter how received.'

The judge concluded that to permit a child who is obviously seriously injured to expire from want of readily available attention, may in a given circumstance constitute 'cruel and inhumane treatment,' borrowing that phrase from the child abuse statute:

'It is unquestionably inhumane to permit someone who is unable to care for itself and provide for its own medical attention to expire for want of that medical attention and in this case, the testimony shows that, although it became progressively less and less, there was a chance for this child to survive at any point from the time the Defendant returned home until very close to the time it expired, had it been brought to the attention of the medical authorities. This was not done and we think the question of whether or not that, in the facts of this case, is a criminal offense turns essentially upon the finding of the fact by the jury.'

As previously noted there was no evidence that M's. Fabritz inflicted Windy's injury. Thus the actions upon which the verdict was based occurred during the eight hour period when Windy was in her mother's presence. M's. Fabritz bathed Windy twice (once with alcohol), put her night clothes on, tried to feed her, took her temperature and finally tried to call a doctor. During that period, she had to have observed the child's badly bruised body, as did a neighbor who assisted her. In the eighth hour after arrival home Windy convulsed and was rushed to the hospital. She was pronounced dead on arrival, death having been caused by peritonitis resulting from a blow to the stomach. The State's 'cruel and inhumane treatment' theory rested on appellant's failure to seek professional medical help until the child convolsed and death was imminent.

The jury found M's. Fabritz guilty of child abuse and the judge sentenced her to five years imprisonment. We do not find the evidence sufficient to sustain that conviction under the language of the statute as repeated in the indictment. See n. 4, infra.

The judge's opinion in denying the motion for judgment of acquittal and his instructions to the jury interpreted the child abuse statute, Md.Code, Art. 27, Sec. 35A, as applying to a person's failure to act to prevent aggravation of an injury. We cannot read that interpretation into the language of the Act.

At the time of the offense the pertinent language was that enacted by Chapter 835 of the Laws of Maryland, 1973. Although it was again amended the following year the change is not here pertinent. The relevant language of Chapter 835 read:

'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. . . .'

"Abuse' shall mean any 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.' (Emphasis added)

Basic to proof of the corpus delicti is a showing that the accused is among the named persons to whom the Act applies (here appellant was the parent) and secondly that such person caused...