State v. Brown

• Decision Date: 22 November 1983
• Docket Number: No. 64791,64791
• Citation: 660 S.W.2d 694
• Parties: STATE of Missouri, Respondent, v. Donald C. BROWN, Appellant.
• Court: Missouri Supreme Court

Page 694

660 S.W.2d 694

STATE of Missouri, Respondent, v. Donald C. BROWN, Appellant.

No. 64791.

Supreme Court of Missouri En Banc.

Nov. 22, 1983.

Rehearing Denied Dec. 20, 1983.

Sean D. O'Brien, Asst. Public Defender, James W. Fletcher, Public Defender, Kansas City, for appellant.

John Ashcroft, Atty. Gen., Janet E. Papageorge, Asst. Atty. Gen., Jefferson City, for respondent.

BILLINGS, Judge.

Defendant Donald C. Brown was convicted by a jury of abuse of a child in violation of § 568.060, RSMo 1978. ¹ Defendant contends the statute is so vague and indefinite as to violate the Due Process Clause of the United States Constitution and the Missouri Constitution, Article II, § 1 and Article III, § 1. He also claims the trial court was without jurisdiction because the indictment did not state sufficient facts to constitute a crime; the evidence was insufficient to support his conviction; the trial court erroneously denied his challenge for cause to one venireperson; and, certain evidence was admitted in violation of the best evidence rule. We affirm.

Defendant and Sandra Brown are the parents of Tekila M. Brown, born on June 28, 1981. Tekila was three months premature at birth. She weighed between one and two pounds and was kept in the hospital for two months before being released to her parents in August, 1981. The events giving rise to the alleged act of abuse occurred during January, 1982, a time at which Tekila was less than seven months old and weighed between ten and thirteen pounds.

Tekila was in the custody of both parents until January 8, 1982, when the couple separated. Sometime during the first week in January, defendant became angered and frustrated at Tekila's crying, picked up the child by her ankles, swung her around, and tossed her four feet to a couch across the room. Because of this, Sandra left defendant.

Tekila was in Sandra's care from the date of separation until January 22, 1982, when Sandra let defendant have the child. At this time there were no unusual marks on the baby's body that would indicate any apparent injury to the child. On Saturday, January 23, 1982, defendant called his wife on the telephone. An argument developed and defendant threatened to hurt Tekila and asked his wife if she wanted to read about her in the newspaper.

Just after midnight on January 26, defendant called an ambulance and his daughter was rushed to Children's Mercy Hospital in Kansas City. Upon arrival, Tekila was lethargic and had bruises to the right side of her face, parallel bruising marks on the right side of her neck, a smaller bruise on the left side of her neck, bruising on her left forearm, and hemorrhaging of her right eye. Defendant told the doctors that his daughter's injuries resulted from her falling out of bed. Medical examination revealed that the bruises on Tekila's neck were consistent with an assumption that a great deal of force was applied to the child in a manner similar to choking or strangulation and were not the result of normal holding.

X-rays taken on January 26, 1982, revealed six bone fractures. There were five "avulsion" fractures to the left hand and wrist, right wrist and forearm, right thigh bone and left leg. The sixth fracture was an "impacted" fracture to the third finger of the right hand. This last injury was consistent with falling out of bed but the other five fractures found were not consistent with the alleged fall from a bed but were caused by twisting, sheering or pulling injuries. From the healing pattern revealed by the x-rays, it could be determined that the five avulsion fractures caused by a pulling or twisting force most likely occurred sometime between December 29, 1981 and January 12, 1982. Tekila's condition was diagnosed as the "battered child syndrome" or "child abuse syndrome".

On January 26, defendant and his wife met with a state social worker. Defendant reasserted his claim that Tekila had fallen out of bed and hit her head on a wooden slat used to keep the mattress on an oversized bed frame. The same day defendant was interviewed by detectives from the Kansas City Police Department Juvenile Division. Defendant repeated his story of how Tekila's head injuries and bruises on her jaw and neck were caused by a fall from her bed. On January 27, defendant again met with the social worker and at his home he demonstrated how he believed his daughter crawled over him in their bed and fell on the wood slat. Evidence at trial contradicted defendant's contention that Tekila was able to crawl.

On February 1, 1982, defendant went to the police department and gave a revised statement. At this time he admitted he caused the bruises to Tekila's neck. Defendant stated that on Sunday evening, January 25, Tekila was crying and would not stop despite the fact that she had been fed and changed. Frustrated and upset, defendant grabbed the baby by the neck with his hand, shook her sideways and told her to "hush up". Defendant repeated this confession to the social worker on February 2, 1982.

Defendant contends that § 568.060.1(a), RSMo 1978, which provides a person is guilty of Abuse of a Child if he "knowingly inflicts cruel and inhuman punishment upon a child less than seventeen years old," is unconstitutionally vague under the 14th Amendment to the United States Constitution (Due Process Clause). Vagueness, as a due process violation, offends two important values. One is that notice and fair warning require that "laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly." Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 2298-99, 33 L.Ed.2d 222 (1972). See Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1926); Broadrick v. Oklahoma, 413 U.S. 601, 607, 93 S.Ct. 2908, 2913, 37 L.Ed.2d 830 (1973); State ex rel. Williams v. Marsh, 626 S.W.2d 223, 233 (Mo. banc 1982). Additionally, the vagueness doctrine assures that guidance, through explicit standards, will be afforded to those who must apply the statute, avoiding possible arbitrary and discriminatory application. Grayned v. City of Rockford, 408 U.S. at 108, 92 S.Ct. at 2299; State ex rel. Williams v. Marsh, 626 S.W.2d at 233.

A statute is presumed constitutional and will not be held otherwise unless it clearly and undoubtedly violates some constitutional provision. In re. Trapp, 593 S.W.2d 193, 202 (Mo. banc 1980) (cases cited therein), appeal dismissed, 456 U.S. 967, 102 S.Ct. 2226, 72 L.Ed.2d 840 (1982). Impossible standards of specificity are not required. Id.

It is not the issue that the legislative branch of government which enacted the statute could have chosen more precise or clearer language which determines the issue of vagueness. State v. McMilian, 649 S.W.2d 467, 471 (Mo.App.1983), citing, United States v. Powell, 423 U.S. 87, 94, 96 S.Ct. 316, 320, 46 L.Ed.2d 228 (1975). We have previously recognized that the many diverse circumstances which may give rise to a finding of child abuse or neglect must be considered when the standards embodied in a statute are viewed in the light of the due process clause. In re. Trapp, 593 S.W.2d at 203.

"If the terms or words used in the statute are of common usage and are understandable by persons of ordinary intelligence, they satisfy the constitutional requirements as to definiteness and certainty." Prokopf v. Whaley, 592 S.W.2d 819, 824 (Mo. banc 1980).

The statute, § 568.060.1(a), conveys with sufficient definiteness what conduct is prohibited by law. The words "cruel and inhuman punishment" in the statute are not so vague and indefinite as to render the statute void for vagueness. These terms have a settled common-law meaning and are words of general and common usage about which there is no great dispute as to meaning. Our conclusion is consistent with decisions in other jurisdictions where similarly worded child abuse statutes have survived void for vagueness attacks. See, e.g., State v. Fahy, 201 Kan. 366, 440 P.2d 566, 569 (1968) ("[s]uch words as torture, beat, abuse, cruel punishment or inhuman punishment are hardly vague.") (Emphasis added); Bowers v. State, 283 Md. 115, 389 A.2d 341, 348 (1978) (the standard "cruel or inhumane" has a settled and commonly understood meaning); Hunter v. State, 172 Ind.App. 397, 360 N.E.2d 588, 594-95 ("unnecessary" punishment or infliction of pain) cert. denied, 434 U.S. 906, 98 S.Ct. 306, 54 L.Ed.2d 193 (1977); State v. Samter, 4 Or.App. 349, 479 P.2d 237, 240 (1971) ("cruel mistreatment"); State v. Killory, 73 Wis.2d 400, 243 N.W.2d 475, 479-80 (1976) ("cruel maltreatment").

Defendant attacks the statute, § 568.060, as an impermissible delegation of legislative power in violation of Mo. Const. Art. II, § 1, and Art. III, § 1. We recognize that the duty and power to define crimes and ordain punishment is exclusively vested in the legislature. State ex rel. Williams v. Marsh, 626 S.W.2d 223, 235 (Mo. banc 1982), citing, State v. Raccagno, 530 S.W.2d 699, 703 (Mo.1975). While not all persons would agree in every instance whether certain specified conduct was sufficiently beyond normal to constitute cruel and inhuman treatment, the statute clearly defines the yardstick to be applied. See, State v. Samter, 479 P.2d at 239. The mere fact that applying the statute may require some discretion on the part of the trier of fact does not render the discretion exercised analogous to defining a crime. State ex rel. Williams v....