Simms v. US, No. 02-CF-1165.

• Decision Date: 27 January 2005
• Docket Number: No. 02-CF-1165.
• Citation: 867 A.2d 200
• Parties: Theodore R. SIMMS, Jr., Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

867 A.2d 200

Theodore R. SIMMS, Jr., Appellant, v. UNITED STATES, Appellee.

No. 02-CF-1165.

District of Columbia Court of Appeals.

Argued December 15, 2004.

Decided January 27, 2005.

Jonathan W. Anderson, Public Defender Service, with whom James Klein and Jaclyn S. Frankfurt, Public Defender Service, were on the brief, for appellant.

Emily A. Miller, Assistant United States Attorney, with whom Roscoe C. Howard, Jr., United States Attorney at the time the brief was filed, and John R. Fisher, Roy W. McLeese III, Lionel Andre and Toni B. Florence, Assistant United States Attorneys, were on the brief, for appellee.

Before SCHWELB and WASHINGTON, Associate Judges, and KRAVITZ, Associate Judge, Superior

Court of the District of Columbia.¹

SCHWELB, Associate Judge:

Following a jury trial, Theodore R. Simms, Jr., was found guilty of simple assault. The jury acquitted Simms of aggravated assault, first-degree cruelty to children, and second-degree cruelty to children. At the time of the offense, the victim, William Calloway, who was the son of Simms' fiancee, Pauline Calloway, was fourteen months old.

On appeal, Simms contends that he was acting in loco parentis and that the trial judge committed reversible error by refusing to instruct the jury on the defense of reasonable parental discipline. The government responds, inter alia, that no impartial jury could reasonably find that Simms was acting in loco parentis, and that there was therefore no evidentiary foundation for the requested instruction. We agree with the government and accordingly, we affirm.²

I.

THE EVIDENCE

A. William's injuries.

On November 7, 2000, Michael Knaggs, a firefighter and emergency medical technician, responded to Simms' home after receiving a report that a father and child had fallen down a flight of stairs. When Knaggs arrived, Simms told him that William was his son. Simms confirmed that he had fallen down the stairs with William in his arms. Simms took Knaggs upstairs, and Knaggs found the child lying down, holding his arm, and whimpering. Knaggs noted bruises on William's upper arm and a bite mark on his left arm. Knaggs recalled the bite mark because "there are some things that stand out in your head."

Knaggs took William to Children's Hospital, where the boy was found to have suffered numerous injuries, including three fractures of his left arm, two fractures of his right arm, several bite marks, and bruises all over his head, face and body. Simms indicated, both to Knaggs and to physicians at Children's Hospital, that William might have been bitten by a puppy. The bite marks, however, were human, and the parties ultimately so stipulated at trial. Because William's injuries appeared inconsistent with Simms' explanation of a fall down the stairs, and because they were so numerous, Dr. Maria Ieni, a Children's Hospital pediatrician, reported the matter to the District's Office of Child Protective Services.

Following Dr. Ieni's call, Sergeant Morani Hines and Detective Wallace of the Metropolitan Police Department (MPD) responded to Children's Hospital. After Simms had told them that he was prepared to talk about the incident, Hines and Wallace transported him to a police station where Simms made a videotaped statement which was subsequently introduced into evidence at his trial.

B. Simms' videotaped statement.

In his statement, Simms asserted that on Sunday, November 5, 2000, his fiancee brought William to the home where Simms lived with his parents. Simms claimed that he had been slightly injured in an automobile accident on the preceding Friday night, and that he was therefore unable to perform his job as a chef for a few days. He therefore agreed to look after William, whom he claimed to regard as a son, while Ms. Calloway was at work.

Simms told the police that on the evening of Monday, November 6, he and some friends were playing video games in Simms' bedroom. On that evening, William had a slight fever. William was lying down in Simms' mother's room, and he knocked down a glass vase. Simms "used some force and smacked [William's] hand," and he "popped" (i.e., slapped) William on the thigh,³ apparently to discipline him for knocking down the vase. Simms then "tucked William in the sheets real tight so he couldn't get out" and returned to his friends. Notwithstanding Simms' efforts to keep him tucked in, William got loose and was about to fall; Simms "tapped" or "popped" him again.

Simms further related that neither he nor William had slept during the night from Monday to Tuesday. On Tuesday morning, at Ms. Calloway's direction, Simms set out to give William a bottle. He picked William up and headed towards the stairs. En route, Simms was "playing" with William by shaking him, rubbing him, and putting William's arm in his (Simms') mouth and biting him on both arms in order to "make him laugh." Thereafter, as he was walking downstairs with William in his arms, Simms' leg buckled and he fell, dropping William as he did so. Simms may have accidentally bitten William as a result of the fall. William also hit his head.

A short time after the accident Simms noticed a bruise on the boy's forehead and a lump on his upper right thigh. William was also unable to hold the bottle. Simms called Ms. Calloway who returned home and called an ambulance. The ambulance arrived and, as previously described, William was taken to Children's Hospital.

C. The trial testimony.

At Simms' trial, the prosecution introduced expert testimony and medical evidence regarding William's injuries, and sought to prove that these injuries were not sustained in the manner described by Simms. Because Simms was acquitted of aggravated assault and cruelty to children, we find it unnecessary to describe this testimony. The government also introduced into evidence Simms' videotaped statement. Pauline Calloway, William's mother, did not testify.

Simms took the witness stand on his own behalf. His description of the events leading to the transportation of William to Children's Hospital generally conformed to his videotaped statement to the police, but there were some inconsistencies and elaborations. Simms testified that on the Tuesday morning, he was "nibbling" on William's left arm at the top of the staircase, not on both arms. He claimed that he told Dr. Ieni that William had been bitten by a puppy because "that was the only thing that I could think of at the time." He acknowledged that the bite mark on William's left arm "might have occurred while I was nibbling the baby" when he fell.

Simms acknowledged that he physically "disciplined" William over the weekend, and that he had done so in a similar fashion in the past. Although he denied that he had made William cry or caused any injury to the boy, he admitted that each time he "popped" William, he did so three times consecutively. He acknowledged having told Detective Wallace that he had "popped" William on the leg four times over the vase and several more times for not sleeping and that this caused injury to William's right thigh. Simms knew that William was "restless" from a fever on Monday night, but "popped" him anyway as a form of discipline to make him sleep. Simms did not regard this "discipline" of a fourteen-month-old child as "excessive."

D. Simms' relationship with William.

Simms also presented testimony designed to show that, in disciplining William, he was acting in loco parentis. He testified that he met William's mother in February 2000, that she became his fiancee in July of that year, and that he considered William to be his son or stepson. He claimed that from the time when he had met Ms. Calloway, he had on occasion provided food, clothes, shoes, diapers, bottles, and "anything else that [William] needed...." Simms testified that he accepted this financial burden even while Ms. Calloway was unemployed. He took William to the park or to the mall, and he accompanied the boy and his mother on similar outings. Simms stated that he had seen William's mother and grandmother discipline William in the same manner that Simms did, and he claimed that the mother had been present on occasions when he disciplined the boy.

At the time of the events that led to his prosecution, however, Simms was still living with his parents, while Ms. Calloway and William lived together in a separate household. Indeed, Simms answered in the affirmative when his attorney asked him, "Did you babysit [William] on occasion?" (Emphasis added.) Simms estimated that before November 2000, he "babysat" or "watched" William four or five times when the boy's mother had "to go to work or [when] it would be inconvenient for her to handle him." (Emphasis added.) By Simms' own account, the occasions on which he looked after William had been sporadic and — given that he had known Ms. Calloway since the previous February — quite infrequent, once every couple of months.

E. The trial judge's rulings.

The trial judge refused Simms' request that the jury be instructed on the defense of "reasonable parental discipline,"⁴ concluding as a matter of law that Simms was not acting in loco parentis. Putting the matter in a nutshell, the judge stated that Simms was just "babysitting" and "was not keeping this kid the whole time or taking care of this kid. That was his mother's responsibility."

As previously noted, the jury convicted Simms of simple assault only. Simms filed a motion for a new trial, which the trial judge denied in a written order. In his order, the judge wrote, inter alia, that Simms "did not offer any evidence other than a conclusory naked assertion that he was acting in loco parentis." After discussing Martin v. United States, 452 A.2d 360 (D.C.1982), and Fuller v. Fuller, 247 A.2d 767 (D.C.1968), aff'd,135 U.S.App. D.C. 353, 418 F.2d 1189 (1969) (per curiam), the judge continued:

Here, the Defendant had certainly not put himself in the position of a lawful parent. He had occasionally watched the child over

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