People v. Gregg

• Decision Date: 06 July 1994
• Docket Number: Docket No. 158945
• Citation: 520 N.W.2d 690,206 Mich.App. 208
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Billy Joe GREGG, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 690

520 N.W.2d 690

206 Mich.App. 208

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Billy Joe GREGG, Defendant-Appellant.

Docket No. 158945 Court of Appeals of Michigan.

Submitted May 10, 1994, at Marquette.

Decided July 6, 1994, at 9:20 a.m.

Released for Publication Sept. 8, 1994.

Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., Patrick M. Shannon, Pros. Atty., and Steven B. Flancher, Asst. Atty. Gen., for the People.

Lewinski & Brewster, P.C. by Paul M. Brewster, Sault Ste. Marie, for defendant.

Before MacKENZIE, P.J., and NEFF and OLZARK, ^* JJ.

PER CURIAM.

Following a jury trial, defendant was convicted of fourth-degree child abuse, M.C.L. § 750.136b(5); M.S.A. § 28.331(2)(5), for abusing his four-year-old son. Defendant was sentenced to serve 120 days in jail. The trial court also placed defendant on probation for a period of eighteen months. Defendant now appeals as of right. We affirm.

I

Defendant struck the boy twice in the face and once in the leg while the boy was playing with some toy race cars. There is no indication why defendant struck the boy. The blows to the boy's face caused blood blisters, bruises, and a hand-shaped welt on the side of the boy's face. The bruises had lightened two days after the assault; however, the marks were still visible on the boy's face one week after the assault.

Defendant moved in the trial court to set aside his conviction, arguing that M.C.L. § 750.136b(5); M.S.A. § 28.331(2)(5) was unconstitutionally vague and overbroad. The trial court denied the motion.

II

Defendant contends that the statute under which he was convicted is unconstitutional because it is impermissibly vague. We disagree.

Statutes are presumed to be constitutional, and courts have a duty to construe a statute as constitutional unless its unconstitutionality is clearly apparent. Caterpillar, Inc. v. Dep't of Treasury, 440 Mich. 400, 413, 488 N.W.2d 182 (1992); People v. Trinity, 189 Mich.App. 19, 21, 471 N.W.2d 626 (1991). The party challenging a statute's constitutionality has the burden of proving its invalidity. Id.

A criminal statute may be challenged for vagueness on three grounds: (1) it does not provide fair notice of the conduct proscribed; (2) it confers on the trier of fact unstructured and unlimited discretion to determine whether an offense has been committed; and (3) its coverage is overly broad and impinges on First Amendment freedoms. Doe v. Attorney General, 194 Mich.App. 432, 440, 487 N.W.2d 484 (1992). Defendant attacks M.C.L. § 750.136b(5); M.S.A. § 28.331(2)(5) on all three grounds.

M.C.L. § 750.136b(5); M.S.A. § 28.331(2)(5) provides:

A person is guilty of child abuse in the fourth degree if the person's omission or reckless act causes physical harm to a child. Child abuse in the fourth degree is a misdemeanor punishable by imprisonment for not more than 1 year.

A

Defendant claims that this statute fails to provide fair notice of what conduct is proscribed, because it uses a circuitous definition of "physical harm" that explains nothing because it could include anything from a paper cut to death. We disagree.

To be constitutional, a contested statutory phrase must give persons of ordinary intelligence notice of the conduct that will subject them to criminal liability. People v. Hicks, 149 Mich.App. 737, 741, 386 N.W.2d 657 (1986). The term "physical harm" is defined by M.C.L. § 750.136b(1)(d); M.S.A. § 28.331(2)(1)(d) as "any injury to a child's physical condition." Viewing the term "physical harm" in the context of the fourth-degree child abuse statute taken as a whole we find that the statute clearly provides fair notice to persons of ordinary intelligence of the conduct proscribed, namely, an omission or reckless act that causes any injury to a child's physical condition. Defendant has failed to sustain his burden of proving the invalidity of M.C.L. § 750.136b(5); M.S.A. § 28.331(2)(5) on this basis.

B

Defendant next argues that the statute confers on the trier of fact unstructured and unlimited discretion to determine whether an offense has been committed, because there are no guidelines to ascertain what conduct is permitted or prohibited. In so arguing, defendant claims that the word "reckless," as used in the statute, and the word "reasonable," as used in the instructions to the jury, are undefined and their meanings are unknown.

We will not review defendant's claim of error with regard to the jury instruction, because defendant expressed satisfaction at trial with the instructions given. People v. Taylor, 159 Mich.App. 468, 488, 406 N.W.2d 859 (1987).

Unless defined in the statute, every word of the statute should be accorded its plain and ordinary meaning. M.C.L. § 8.3a; M.S.A. § 2.212(1); People v. Tracy, 186 Mich.App. 171, 176, 463 N.W.2d 457 (1990). If a statute does not expressly define its terms, a court may consult dictionary definitions. People v. Downey, 183 Mich.App. 405, 409, 454 N.W.2d 235 (1990).

Black's Law Dictionary (6th ed) defines "reckless" as:

Not recking; careless, heedless, inattentive; indifferent to consequences. According to circumstances it may mean desperately heedless, wanton or willful, or it may mean only careless, inattentive, or negligent. For conduct to be "reckless" it must be such as to evince disregard of, or indifference to, consequences, under circumstances involving danger to life or safety to others, although no harm was intended.

The Random House College Dictionary, Revised Edition, defines "reckless" as:

1. utterly unconcerned about the consequences of some action; without caution; careless ... 2. characterized by or proceeding from such carelessness.

Given these dictionary definitions of the word "reckless" and applying its plain and ordinary meaning to the language of the statute, we find defendant's claim that the statute confers upon the jury unstructured and unlimited discretion to determine whether an offense has been committed to be without merit. The statute prohibits the commission of a reckless act that causes physical harm to a child.

C

Defendant's final claim is that the statute is overbroad and impinges on his First Amendment right to raise and reasonably discipline his child through the use of physical punishment. We disagree.

Statutory provisions must be read in the context of the entire statute so as to produce an harmonious whole. Downey, supra. Subsection 6 of the child abuse statu...