Kama v. State, BJ-75

• Decision Date: 08 May 1987
• Docket Number: No. BJ-75,BJ-75
• Citation: 507 So.2d 154,12 Fla. L. Weekly 1195
• Parties: 12 Fla. L. Weekly 1195 George H. KAMA, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 154

507 So.2d 154

12 Fla. L. Weekly 1195

George H. KAMA, Appellant, v. STATE of Florida, Appellee.

No. BJ-75.

District Court of Appeal of Florida First District.

May 8, 1987.

John C. Harrison, Shalimar, for appellant.

Jim Smith, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., Tallahassee, for appellee.

BARFIELD, Judge.

In this appeal from a conviction for aggravated child abuse, George Kama challenges the trial court's refusal to instruct the jury on allegedly lesser included offenses: misdemeanor child abuse, section 827.04(2), Florida Statutes (1985), and simple battery, section 784.03, Florida Statutes (1985). We affirm.

Appellant was charged with aggravated child abuse upon his ten-year-old stepson, Christopher, on June 11, 1985, in that he "did maliciously punish said child by hitting child across back several times and hitting said child in face with his fist, in violation of section 827.03(3), Florida Statutes." ¹ Appellant's wife testified that she called the police because appellant was beating her child, "whopping him with a belt and slapping him in the face and just a little bit out of hand with him." She testified that she had spanked Christopher the day of the incident because he had pulled a knife on the younger children and lied to her about it, and that when appellant came home she told him about the incident with the expectation that he would punish Christopher, who would not listen to her. She testified that Christopher also lied to appellant when asked about the incident, and that appellant then struck the child with his fist, kicked him in the stomach, and pushed him up against the wall.

The officer who answered the call testified that when he arrived at the residence, appellant was sitting on the couch and Christopher was standing against the wall crying, and that he observed marks on the back and face of the child. Christopher testified that appellant spanked him, hit him with his fist in the face, hit him with a belt on the back and "behonkey", kicked him in the stomach, and picked him up off the floor by his ears.

A pediatrician who examined Christopher testified that the child had a number of bruises and scratches on his face and upper body, as well as his buttock, and that some of the bruises on his back were consistent with his having been struck with a belt. A registered nurse who saw Christopher on the evening of the incident testified that he had bruising on various parts of his body. The next morning she took photographs of the child which were shown to the jury.

Appellant's request that the jury be instructed on lesser included offenses of simple battery and misdemeanor child abuse, each punishable by not more than one year incarceration, was denied. The jury found him guilty of aggravated child abuse, a second degree felony punishable by up to fifteen years incarceration. He was sentenced to seven years.

Appellant asserts that the jury should have been allowed to determine whether he violated section 827.04(2) by "permitting" or "allowing" injury to the child, citing Mahaun v. State, 377 So.2d 1158 (Fla.1979), in which the court referred to the misdemeanor of "culpable negligence" as a lesser included offense of aggravated child abuse. While he admits that ordinary discipline of a child by his parent would not constitute the crime of battery ², he asserts that a stepfather could be guilty of the crime of simple battery if he "crosses the line" of ordinary acceptable discipline, as he did in this case. He argues that the jury should have been permitted to make this determination and to exercise its "pardon power" by finding him guilty of one of the lesser offenses, asserting that the child abuse in the instant case "was relatively minor compared to the majority of cases of this nature."

The schedule of lesser included offenses contained in the Florida Standard Jury Instructions in Criminal Cases ³ does not include section 827.03, although it does include 827.04. Left without guidance from the Florida Supreme Court on this issue, the trial judge found that a stepparent cannot be guilty of simple battery under section 784.03 for disciplining his stepchild. Implicit in the trial judge's refusal to give the instruction on simple battery is his determination that where the parent "crosses the line" of acceptable discipline, as appellant admittedly did in this case, he commits aggravated child abuse, the offense charged, and not simple battery. We agree with this determination.

Although a person who spanks a child technically commits a battery ⁴, the parties do not dispute the well established principle that a parent, or one acting in loco parentis, does not commit a crime by inflicting corporal punishment on a child subject to his authority, if he remains within the legal limits of the exercise of that authority. ⁵ The determination that a parent, or one standing in the position of a parent, has overstepped the bounds of permissible conduct in the discipline of a child presupposes either that the punishment was motivated by malice, and not by an educational purpose; that it was inflicted upon frivolous pretenses; that it was excessive, cruel or merciless; or that it has resulted in "great bodily harm, permanent disability, or permanent disfigurement". ⁶ Otherwise, persons in positions of authority over children would have no way to judge the propriety of their conduct under the criminal standard.

Historically, the Florida Legislature has specifically provided criminal sanctions against those who mistreat children, even though other statutory provisions generally proscribe assault, battery, false imprisonment and culpable negligence. ⁷ The logical conclusion to be drawn from the current statutory scheme is that the legislature intended that reasonable discipline of children be privileged, but that when the person in authority over a child inflicts punishment greater than that which he is privileged to inflict, he commits a serious offense, aggravated child abuse, not merely a misdemeanor nonconsensual touching. Otherwise, there would be no need for a special statute defining aggravated child abuse to include aggravated battery; the standard concepts of battery and aggravated battery would be sufficient.

It is because the law permits, by privilege, a simple battery in the administration of discipline by one in authority over a child that the offense of aggravated child abuse must be so defined. Appellant's contention is that there must be some offense less serious than a second degree felony for a battery which exceeds the legal limits of a parent's disciplinary authority. The legislature has not so provided, and such an unconstitutionally ambiguous standard would not provide the means for judging the acceptable boundaries of disciplinary conduct. The offense of battery covers a broad range of conduct, from an intentional "unconsented to" touching, to the intentional infliction of bodily harm. The courts have no authority to artificially create degrees of battery not defined within the statute.

It is not possible to legislatively lay down any fixed parameters of "reasonable discipline" of a child. Whether in any particular case the punishment inflicted was permissible or excessive must necessarily depend on the age, condition, and disposition of the child, as well as the attendant circumstances. ⁸ This determination must be made by the jury under proper instruction. In the case at issue, a jury instruction on simple battery, given in conjunction with an instruction on aggravated child abuse, would only have confused the members of the jury, as it would have presented them with conflicting standards of authorized punishment of a child by its parent.

Aggravated child abuse is a unique statutory creature which does not appear to have a lesser included offense when the offender is a person entrusted with the care and discipline of the child victim. Although in some cases, not involving discipline of a child by a parent or other person in authority over him, the offense of aggravated child abuse may include simple battery, the trial judge properly found that battery was not a lesser included offense in this case, and therefore did not abuse his discretion in refusing to instruct the jury on simple battery.

Similarly, the trial judge properly found that misdemeanor child abuse was not a lesser included offense of aggravated child abuse in this case. Section 827.04(2), is violated when a person allows a child to be deprived of necessary food, clothing, shelter, or medical treatment, or through culpable negligence permits physical or mental injury to a child. The uncontroverted evidence in this case is that appellant inflicted injury upon the child, not that he "permitted" injury to the child, as contemplated by section 827.04(2). ⁹ The trial judge therefore did not abuse his discretion in refusing to instruct the jury on misdemeanor child abuse.

Because we can find no indication why the schedule of lesser included offenses in the Florida Standard Jury Instructions in Criminal Cases does not include section 827.03, we certify, as a matter of great public importance, the following question:

WHAT, IF ANY, ARE THE CATEGORY 1 AND 2 LESSER INCLUDED OFFENSES FOR THE CRIME OF AGGRAVATED CHILD ABUSE UNDER SECTION 827.03, FLORIDA STATUTES (1985)?

The conviction is AFFIRMED.

WIGGINTON, J., concurs.

ERVIN, J., dissents, with written opinion.

ERVIN, Judge, dissenting.

In my judgment, both simple battery and misdemeanor child abuse are necessarily lesser included offenses to that of aggravated child abuse. The fact that the charged offense of aggravated child abuse is not contained in the Florida Standard Jury Instructions in Criminal Cases does not of course compel the conclusion that the two requested offenses cannot be considered necessarily lesser included offenses to that of the charged offense. See In the Matter of the Use by the Trial Courts of the...