State v. Danforth

• Decision Date: 16 April 1986
• Docket Number: No. 85-0210-CR,85-0210-CR
• Citation: 385 N.W.2d 125,129 Wis.2d 187
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Wayne J. DANFORTH, Defendant-Appellant-Petitioner.
• Court: Wisconsin Supreme Court

Page 125

385 N.W.2d 125

129 Wis.2d 187

STATE of Wisconsin, Plaintiff-Respondent, v. Wayne J. DANFORTH, Defendant-Appellant-Petitioner.

No. 85-0210-CR.

Supreme Court of Wisconsin.

Argued Feb. 11, 1986.

Opinion Filed April 16, 1986.

Leonard D. Kachinsky, Neenah, for defendant-appellant-petitioner.

Kirbie Knutson, Asst. Atty. Gen., with whom on brief was Bronson C. La Follette, Atty. Gen., for plaintiff-respondent.

DAY, Justice.

This is a review of a published decision of the court of appeals, 125 Wis.2d 293, 371 N.W.2d 411 (Ct.App.1985), affirming the judgment of the circuit court of Outagamie county, Honorable Nick F. Schaefer, circuit judge, convicting Wayne J. Danforth (Defendant) of cruelly maltreating a child, on the morning of July 9, 1983, contrary to section 940.201, Stats., 1981-1982. ¹ The following issues are raised on review: (1) Is specific intent to cruelly maltreat a child an element of child abuse under section 940.201, Stats.; (2) If specific intent is not an element, did the trial court err in admitting evidence that the Defendant struck the child on the buttocks, causing bruising earlier in the morning of July 9, 1983, and that he struck the child in the face, causing two black eyes several months earlier, and if so, was the error prejudicial to the Defendant; and (3) Was the Defendant entitled to have the jury instructed on battery, section 940.19(1), Stats. ² We conclude that specific intent is not an element of child abuse, that although the alleged prior acts of child abuse were erroneously admitted into evidence pursuant to section 904.04(2), Stats., ³ such error was harmless, and that the Defendant was not entitled to an instruction on battery because it is not a lesser included offense of child abuse.

On the evening of July 9, 1983, the victim, (N.S.), age two years and ten months, was brought to the emergency room of St. Mary's Hospital in Green Bay, Wisconsin, by his mother and the Defendant, because the child had been vomiting all day. Both a nurse and Doctor Gordon Haugan, a pediatrician, testified that the child's buttocks were covered with bruises of various ages. Doctor Haugan further testified that it was his opinion that the newer bruises were incurred within several hours of the child's being brought to the hospital. Doctor Haugan also observed that N.S.'s abdomen was bloated and diffusely tender.

Exploratory surgery, performed by Doctor John C. Bishop, revealed a one-fourth inch hole in the child's small intestine, which according to Doctor Bishop, was not more than twenty-four hours old. Both Doctor Haugan and Doctor Bishop agreed that a perforated intestine was a potentially fatal injury. It was Doctor Bishop's opinion that the perforation was caused by trauma. It was Doctor Haugan's opinion that N.S. was struck in the abdomen, and that a fist could have caused the injury. When the child was asked, by a nurse where he had received his "bad owie," he responded that "daddy hit me." ⁴

On July 12, 1983, the Defendant was questioned by Sergeant Ronald L. Springer of the Outagamie County Sheriff's Department and Gregory Otto, an Outagamie county social worker. Sergeant Springer testified that the Defendant gave the following version of what occurred on July 9, 1983: Approximately two hours after N.S. had eaten breakfast, he came into the house, after having fallen on a toy and vomited. Defendant stated that the vomiting was the result of N.S.'s having been accidently given sour milk at breakfast. He stated that the child vomited about five times and that each time he gave the child approximately three stomach thrusts to assist the vomiting. (Sergeant Springer described these thrusts as being similar to the Heimlich maneuver used to dislodge material in a choking person's throat). At first, Defendant denied striking the child, but when pressed he admitted spanking the child twice on the buttocks during the "confusion" of the child's crying and vomiting.

Defendant's version of the events was inconsistent with statements by others. On July 20, 1983, the Defendant was again questioned by Sergeant Springer and the social worker and was confronted with the inconsistencies. The Defendant's reply was something to the effect of "[e]very time I'm drinking is the only time that I get involved with the child." Sergeant Springer testified that the Defendant then gave the following version of the facts. That on the morning of July 9, 1983, he had a "hangover", and while he and the child's mother were in bed, N.S. came to the bedroom door and said that he had to "go potty." Before the Defendant got out of bed, the child urinated on the floor. Defendant struck the child twice on the right buttock. Defendant further stated that the child vomited on the living room floor shortly after breakfast. Defendant stated that while he was cleaning up the vomit he was very angry with the child because he threw up on the floor and because he "gave the finger" to the Defendant. Defendant said he responded by striking the child "quite hard" in the stomach. (On cross-examination, Sergeant Springer testified that Defendant said he made a partial fist and struck the child with the back side of the edge of his hand.) According to Sergeant Springer, Defendant stated that when the child vomited again he used the "Heimlich maneuver" on the child.

On July 22, 1983, the Defendant was arrested. The information filed in this case charged that the Defendant "intentionally subject[ed] a child [N.S.] to cruel maltreatment, including internal injuries, contrary to Wisconsin Statute Section 940.201." At trial, both the state and the Defendant assumed that intent to cruelly maltreat was an element of section 940.201, Stats. Thus, while the Defendant pleaded not guilty, he did not deny striking the child in the abdomen, but rather denied that he intended to cause the internal injury. ⁵ The trial judge allowed in evidence of other similar acts under section 904.04(2), as relevant to the issue of intent. That evidence was the bruising of the child's buttocks inflicted by the Defendant on the morning of July 9, 1983, and an incident that occurred in April of 1983 when the Defendant struck N.S. in the face causing two black eyes after N.S. gave the Defendant "the finger."

The court employed the uniform jury instruction on child abuse and instructed the jury, in part:

"The second element requires that the defendant intentionally subjected [N.S.] to cruel maltreatment.

" 'Cruel maltreatment' means the intentional infliction of severe physical injury.

'Severe physical injury' means severe bruises, lacerations, fractured bones, burns, internal injuries, pain or other serious bodily harm.

" 'Intentional' as used here means that the acts of the defendant were not inadvertent or accidental but were done with the purpose to cruelly maltreat [N.S.]." Wis.J.I. Criminal 1221 (1982).

The court refused Defendant's request to instruct the jury on battery, on the grounds that battery is not a lesser included offense of child abuse. The jury returned a verdict of guilty, and the Defendant was sentenced to prison for an indeterminate term of not more than two years.

Defendant moved for a new trial alleging that the evidence of alleged prior acts of child abuse were improperly admitted and that a battery instruction should have been given because it is a lesser included offense of child abuse. In denying the motion, the trial court concluded that the other wrongs evidence was properly admitted to show intent, and that battery is not a lesser included offense of child abuse.

Defendant raised these claimed errors on appeal to the court of appeals, and further alleged the alternative argument that battery is a closely related offense to child abuse on which he was entitled to an instruction, if requested by him, as a matter of due process. The state claimed, for the first time, that intent is not an element of section 940.201, Stats.

The court of appeals held that specific intent to cruelly maltreat is not an element of child abuse. It based its holding on the fact that none of the terms designated in section 939.23(1), Stats., ⁶ to signify that "criminal intent is an element of a crime in chs. 939 to 948 ..." are included in section 940.201, and on this court's holding in State v. Stanfield, 105 Wis.2d 553, 561, 314 N.W.2d 339 (1982) that intent is not an element of section 948.02, which prohibits any person from "treat[ing] any animal ... in a cruel manner." Because specific intent is not an element of section 940.201, the court of appeals held that the trial court erred in admitting evidence that the Defendant struck the child on two previous occasions. It held that the error was harmless. The court of appeals reaffirmed the trial court's refusal to instruct the jury on battery, because none of the elements of battery are elements of child abuse.

The first question is whether specific intent to cruelly maltreat a child is an element of section 940.201, Stats., which provides:

"940.201. Abuse of children. Whoever tortures a child or subjects a child to cruel maltreatment, including, but not limited, to severe bruising, lacerations, fractured bones, burns, internal injuries or any injury constituting great bodily harm under s. 939.22(14), is guilty of a Class E felony. In this section, 'child' means a person under 16 years of age."

In arguing that specific intent is an element, Defendant relies on the uniform jury instruction that defines cruel maltreatment as the "intentional infliction of severe physical injury," and on this court's decision of State v. Killory, 73 Wis.2d 400, 243 N.W.2d 475 (1976), alleging that it approved sub silentio a similar instruction. Defendant further argues that the removal of the word "intentionally" from the original bill was to avoid repetitive references to words implying intent, and that intent may be implied due to the seriousness of the penalty. ⁷ Defendant also alleges that the...