Newby v. US

• Decision Date: 09 May 2002
• Docket Number: No. 98-CF-1125.,98-CF-1125.
• Parties: Jacqueline NEWBY, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

797 A.2d 1233

Jacqueline NEWBY, Appellant, v. UNITED STATES, Appellee.

No. 98-CF-1125.

District of Columbia Court of Appeals.

Argued September 21, 2000.

Decided May 9, 2002.

David A. Singleton, Public Defender Service, with whom James Klein and Julie Brain, Public Defender Service, were on the brief, for appellant.

Ann K.H. Simon, Assistant United States Attorney, with whom Wilma A. Lewis, United States Attorney at the time the brief was filed, and John R. Fisher and Roy W. McLeese, III, Assistant United States Attorneys, were on the brief, for appellee.

Before STEADMAN, FARRELL, and GLICKMAN, Associate Judges.

GLICKMAN, Associate Judge:

In this appeal, appellant Jacqueline Newby contends that a parent may not be convicted of the offense of simple assault for using excessive force to discipline her minor child, at least not unless the government proves that the parent acted with malice. Although this proposition suggests broader questions concerning the limits placed by the criminal law on the use of corporal punishment in parental discipline, we are not persuaded by the specific arguments that appellant presents. We hold that the government may prosecute parent-child assaults as violations of the simple assault statute, and that the government does not need to prove malice in order to overcome the parental discipline defense and secure a conviction. We therefore affirm appellant's conviction in this case.

I.

On a warm Monday afternoon in September, appellant brought her children to a park in southwest Washington, D.C., for a family outing. Before long a commotion broke out, attracting the attention of witnesses who were picnicking nearby. These witnesses watched as appellant, screaming obscenities, pummeled and kicked her six-year-old daughter, who was crying and trying to run away. Dismayed and alarmed, the witnesses summoned the police. Appellant was arrested and charged with second degree cruelty to children, a ten-year felony. The government later dropped that charge, choosing instead to prosecute appellant on one count of simple assault, a 180-day misdemeanor. A bench trial on that charge was held before the Honorable Mildred M. Edwards.

Three eyewitnesses called by the government testified that appellant struck her daughter some ten to fifteen times on her head, neck and shoulders, and kicked her with a shod foot in the middle of her back. The beating continued after appellant knocked her daughter to the ground. The witnesses particularly remembered seeing appellant smack her daughter's face with the back of her hand, on which appellant was wearing several prominent rings.

Testifying in her own defense, appellant explained that her daughter had been misbehaving all afternoon and was especially wild and overexcited at the picnic area. Appellant feared that the child, who was running around in a "rage," would fall in the Potomac River, burn herself on a hot barbecue grill, or run in the path of a car. After exhausting non-violent efforts to distract and quiet her daughter, appellant said, she grabbed and hit the child. Appellant also kicked her in the back of her leg, in order, she said, to stop her from running away toward the river. Appellant admitted that she was angry and had lost control of the situation. She insisted, however, that she never intended to hurt her daughter, but only to discipline her for her own good. Appellant testified, without contradiction, that the child suffered no physical injuries.

Appellant's counsel made timely motions for a judgment of acquittal, submitting on the record without identifying any particular reason why the evidence was insufficient as a matter of law. Thereafter, in closing argument, counsel argued that appellant was privileged to employ reasonable force "for the purpose" of parental discipline, so long as she did not use "excessive" force and cause her daughter serious physical injury.

Concluding that the government had met its "burden to show beyond a reasonable doubt that the defendant's conduct was not justified by the exercise of reasonable parental discipline," Judge Edwards found appellant guilty of simple assault. Crediting the testimony of the government's "reasonable eyewitnesses," the judge rejected appellant's claim that she had administered reasonable discipline. Rather, Judge Edwards found, appellant manifestly developed "a pretty high level of anger" when her unruly daughter continued to disobey her, "cross[ed] the line into a wilful display of anger at the child,. . . . lost it with [her daughter] and . . . beat [her]."

II.

Appellant makes two arguments for reversal of her conviction. First, she argues that the misdemeanor simple assault statute, D.C.Code § 22-404(a) (2001), does not apply at all to assaults by parents on their own children. Appellant argues that parent-child assaults may be prosecuted only under the felony cruelty to children statute, D.C.Code § 22-1101 (2001). Thus, appellant contends, the information in this case fails to state an offense.

Second, and alternatively, appellant argues that even if D.C.Code § 22-404(a) is applicable to parent-child assaults, the government must prove that a parent acted with malice in order to overcome the "parental discipline" defense. Appellant contends that the government failed to prove malice in this case, and that the evidence therefore was insufficient to support her conviction.

The government argues that appellant forfeited her first argument by not making it to the trial court, and that in any event, the simple assault statute does not contain any exception, express or implied, for assaults by parents on their children. As to appellant's second argument, the government acknowledges the parental discipline defense to a charge of simple assault, but argues that it may overcome that defense without having to show malice, by proving either lack of a genuine disciplinary purpose or the use of unreasonable force.

We conclude that appellant preserved both her claims for full appellate review, though she did not raise either one of them with specificity in the trial court, because each claim is in reality a challenge to the sufficiency of the evidence to sustain her conviction. The scope of our review is not limited to plain error. On the merits, however, we reject appellant's contentions and agree with the government. We hold that the simple assault statute, D.C.Code § 22-404(a), applies to crimes by parents against their own children. We further hold that the government is not obliged to prove malice in order to defeat the parental discipline defense. The government may refute that defense by proving that the parent's purpose in resorting to force against her child was not disciplinary, or that the force she used was unreasonable.

A.

In the trial court, appellant never suggested that the assault statute did not apply to her, or that if it did, the government had to prove she acted with malice. As a general proposition, "[o]bjections must be made with reasonable specificity; the [trial] judge must be fairly apprised as to the question on which he is being asked to rule." Hunter v. United States, 606 A.2d 139, 144 (D.C.1992). "Questions not properly raised and preserved during the proceedings under examination, and points not asserted with sufficient precision to indicate distinctly the party's thesis, will normally be spurned on appeal." Miller v. Avirom, 127 U.S.App.D.C. 367, 369-70, 384 F.2d 319, 321-22 (1967) (footnotes omitted). Thus the question naturally arises whether appellant forfeited her claims, in which case she can obtain relief in this court only if she demonstrates plain error. See Super. Ct.Crim. R. 52(b); United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993); Nixon v. United States, 728 A.2d 582, 587 (D.C. 1999). The test for plain error is a stringent one that the appellant in this case cannot hope to meet, if only because the errors she asserts are far indeed from being "clear" or "obvious." Olano, 507 U.S. at 734, 113 S.Ct. 1770; Nixon, 728 A.2d at 587.¹

Appellant denies that she forfeited her claims by not presenting them to the trial court. She argues that, properly understood, each of her claims is simply a challenge to the sufficiency of the evidence to sustain her conviction. She preserved those challenges, she argues, when she made a general motion at the close of all the evidence for a judgment of acquittal pursuant to Super. Ct.Crim. R. 29(a).

We are persuaded that appellant is correct.

In contrast to the general requirement that objections at trial be made with "reasonable specificity" and "precision," this jurisdiction has adhered to the rule that "the grounds for a motion pursuant to Rule 29 need not be stated with specificity unless the prosecutor so requests." Abdulshakur v. District of Columbia, 589 A.2d 1258, 1264 (D.C.1991) (citations omitted). This rule is of ancient lineage in the federal courts, see United States v. Jones, 174 F.2d 746, 748 (7th Cir.1949), where it has survived despite being in conflict with the plain error rule. See, e.g., United States v. Hammoude, 311 U.S.App.D.C. 145, 148, 51 F.3d 288, 291 (1995); United States v. Milton, 303 U.S.App.D.C. 386, 392, 8 F.3d 39, 45 (1993). Even though a general motion for acquittal is "broadly stated, without specific grounds," it is deemed "sufficient to preserve the full range of challenges" to the sufficiency of the evidence.²Hammoude, supra. The rationale for perpetuating this apparent exception to the plain error rule is not clear,³ though it may have a lot to do with considerations of courtroom efficiency and the realization that the prosecution usually knows full well what it must prove to make a prima facie case. Be that as it may, in the instant appeal the government does not dispute the settled rule that a general motion for judgment of acquittal preserves unspecified challenges to the sufficiency of the evidence. We proceed on that...