State v. Eagle Hawk

Decision Date14 January 1987
Docket NumberNos. 15361,15362,s. 15361
Citation411 N.W.2d 120
PartiesSTATE of South Dakota, Plaintiff and Appellee, v. Burton EAGLE HAWK (# 15361) and Mary Ann Spirit Track (# 15362), Defendants and Appellants. . Considered on Briefs
CourtSouth Dakota Supreme Court

Richard D. Coit, Asst. Atty. Gen., Pierre, for plaintiff and appellee State; Mark V. Meierhenry, Atty. Gen., Pierre, on brief.

Joseph E. Ellingson of Tobin Law Office, P.C., Winner, for defendant and appellant Eagle Hawk.

Richard F. Rahn of Grieves & Rahn, Winner, for defendant and appellant Spirit Track.

HENDERSON, Justice.

ACTION/ISSUES

For purposes of clarity and convenience, we shall refer to defendants-appellants Mary Ann Spirit Track and Burton Eagle Hawk as appellants or parents. Both were found guilty of Abuse of or Cruelty to a Minor concerning their three children, Lionel, Malinda, and Burton Spirit Track. They contend the convictions should be reversed and separately raise three common issues in their appeals:

(1) Both appellants were entitled to judgments of acquittal;

(2) SDCL 26-10-1 is vague and indefinite; and

(3) trial court improperly instructed the jury and refused legitimate proposed instructions. Also,

(4) Mother argues that evidence of other bad acts was improperly admitted.

We affirm.

FACTS

Appellants are natural parents of Burton Spirit Track (born November 16, 1983), Malinda Spirit Track (born December 17, 1984), and Lionel Spirit Track (born November 20, 1985). Father was twenty-three years old and Mother was eighteen years old when the incident charged occurred.

On January 23, 1986, Winner police were alerted that one of the Spirit Track children needed immediate medical attention. A police officer and a social worker proceeded to the Spirit Track residence. Upon their arrival, it was observed that three children required medical care. Transportation was provided via police cruiser to Medical Arts Clinic.

Examining physician Webb noted that all three children were extremely odoriferous and dirty. Burton Spirit Track had oozing and crusting sores covering his entire scalp causing matting of his hair. Lice and unidentified larger white insects crawled through his hair. Open sores were observed on his left arm, right elbow, and right knee. Evulsion of his right thumbnail and right big toenail had occurred.

Malinda Spirit Track had a fever. Lice-infected sores covered the entirety of her scalp resulting in matting of her hair. Her left ear canal was purulent and behind that ear were large oozing sores causing separation of ear and scalp. Pus was draining from the left eye and her left nostril was covered with numerous open sores. A sore was also evident on her upper left arm. Lastly, an examination of her left hand revealed evulsion of the third finger's nail.

Lionel Spirit Track was fussy and crying throughout his examination. He had a severe diaper rash accompanied by many open sores and lesions. Several festering sores were noted on his left leg. Dirt completely filled external parts of both ears and his hair contained lice eggs. Pus was draining from both eyes. 1

Dr. Webb testified that the condition of all three children required their hospitalization. She further noted that the severity of sores on Malinda and Burton could have eventually evolved into life threatening infections if left unattended. Physician Webb testified that severe parental neglect was responsible for the medical problems of all three children. She stated repeatedly, in her opinion, severe neglect is abuse. She added, however, that her examinations revealed no clear evidence of any active (hitting or striking type) child abuse.

Appellants were each charged with violation of SDCL 26-10-1, Abuse of or Cruelty to a Minor, a Class 4 felony. Specifically, the Indictment alleged that appellants "did individually and conjointly, abuse and torment [their three children]" by "fail[ing] to furnish proper parental care and medical assistance...." A jury trial commenced on April 15, 1986. Both parents were found guilty of the crime charged. On May 19, 1986, each parent was sentenced to serve three years and six months in the South Dakota Penitentiary.

Each parent filed a Notice of Appeal. These appeals were consolidated for purposes of review by this Court.

DECISION
I.

Appellants, in a facially persuasive manner, assert that their motions for acquittal should have been granted as State failed to demonstrate that they abused, exposed, tortured, tormented, or cruelly punished their children in violation of SDCL 26-10-1. 2 Parents predominantly advocate that severe neglect is not the equivalent of "abuse" or "torment" as was charged in the Indictment. They further argue that failure to provide proper medical care is an act that is properly chargeable under SDCL 25-7-16, 3 not SDCL 26-10-1. We are, however, unpersuaded by the parents' argument, which we summarize below.

Parents' Argument

Prior to its repeal and re-enactment in 1977, SDCL 26-10-1 provided:

It shall be a Class 1 misdemeanor for any person intentionally, negligently, or unnecessarily to expose, torture, torment, cruelly punish, or intentionally neglect any child under eighteen years of age or deprive such child of necessary food, clothing, shelter, or medical attendance.

1977 S.D. Sess. Laws ch. 189, Sec. 96 (emphasis added). The emphasized portion, inter alia, above was amended out in 1977. Also in 1977, SDCL 25-7-16 was changed "reduc[ing] the ... offense from a Class 6 felony to a Class 1 misdemeanor ..." which coincidentally was the pre-1977 offense level of SDCL 26-10-1.

It is therefore reasoned by parents that inclusion of severe neglect by the trial court within the ambit of SDCL 26-10-1 was error. Parallel 1977 amendments of SDCL Secs. 26-10-1 and 25-7-16 (as discussed above) are offered as authority for this assertion. Parents note some courts have stated that "adoption of an amendment creates a presumption that the legislature intended to change preexisting law." Andros v. American Family Mut. Ins. Co., 359 N.W.2d 46, 48 (Minn.App.1984) (citing State v. Coin Wholesalers, Inc., 311 Minn. 346, 250 N.W.2d 583 (1976)).

Parents also argue that since no statutory definition exists for "abuse" and "torment" (the acts alleged in Indictment), their ordinary and plain meaning should be used. They urge that to include severe neglect within the meaning of the above two words would be to judicially expand the language and reach of a statute which is something we have previously refused to do. See Petition of Famous Brands, Inc., 347 N.W.2d 882 (S.D.1984) (and authorities cited therein). Based on these arguments, parents argue their motions for acquittal were improperly denied.

State's Argument

The trial court held that "abuse" and "torment" "are sufficiently broad to include the class of evidence that has been introduced by the State" in that those words "include inaction as well as physical, overt acts of striking, beating or other types of physically caused trauma." State, in its appellate advocacy, makes reference to a definition appearing in SDCL 40-1-1(2) regarding animal abuse 4 and cites SDCL 2-14-4 for the proposition that "[w]henever the meaning of a word or phrase is defined in any statute such definition is applicable to the same word or phrase wherever it occurs except where a contrary intention plainly appears." Id. (emphasis added).

It is also argued that the ordinary meanings of "abuse" and "torment" lend themselves equally to consequences of both active and inactive behavior. 5 See State v. Williquette, 129 Wis.2d 239, 385 N.W.2d 145 (1986); Jakubczak v. State, 425 So.2d 187 (Fla.App.1983); Gullatt v. State, 409 So.2d 466 (Ala.Cr.App.1981). 6 In State v. Zobel, 81 S.D. 260, 274, 134 N.W.2d 101, 109 (1965), this Court stated "each spouse has an equal duty to support and protect [their children] and cannot stand passively by and refuse to help them when it is reasonably within their power to do so." See 1 W. LaFave & A. Scott, Substantive Criminal Law Sec. 3.3, at 294 (1986) (where the authors note

that criminal battery may be committed by an omission to act (if there exists a duty to act), as well as by an affirmative act. If a parent, knowing that injury is substantially certain to result in his infant child unless he acts to prevent it, fails to act, and the infant is injured but not killed as a result, the parent would doubtless be guilty of battery. The same result should follow if his omission amounted to recklessness, though he did not intend any injury to the child.) (Footnotes omitted.)

See also 1 P. Robinson, Criminal Law Defenses Sec. 86(c), at 444 (1984) (where this expert observes: "Liability for an omission can be imposed for any offense on the theory that the failure to perform conduct that one has a duty and the capacity to perform, is an adequate substitute for the conduct required by an offense definition.") (Footnote omitted.)

State maintains that parents simply place too much weight upon the 1977 amendments to SDCL Secs. 26-10-1 and 25-7-16. It argues that at some factually determinable point, parental neglect (under SDCL 25-7-16) must become cruelty or abuse of a minor (under SDCL 26-10-1). State submits identification of this turning point is a question which the jury must answer. It is obvious to us (and was to the jury) that parents' treatment of these children was cruel, inhumane, conducive to injury and recurringly painful. Parents' conduct was abusive under the standards developed by the trial court. Based upon the injuries resulting to these children, we agree with the State's point of view. What, pray tell, we ask, is the difference to the child be he afflicted by acts of commission or omission if, in the end, his body is racked with distress, agony, and torment? We perceive none.

II.

Parents next argue that if we find SDCL 26-10-1 to encompass acts resulting from severe neglect, it is unconstitutionally vague....

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