State v. McDonald

• Decision Date: 04 May 2001
• Docket Number: No. 2D00-1179.,2D00-1179.
• Citation: 785 So.2d 640
• Parties: STATE of Florida, Appellant, v. Jeffrey McDONALD, Appellee.
• Court: Florida District Court of Appeals

785 So.2d 640

STATE of Florida, Appellant, v. Jeffrey McDONALD, Appellee.

No. 2D00-1179.

District Court of Appeal of Florida, Second District.

May 4, 2001.

Robert A. Butterworth, Attorney General, Tallahassee, and Wendy Buffington, Assistant Attorney General, Tampa, for Appellant.

James Marion Moorman, Public Defender, and Kevin Briggs, Assistant Public Defender, Bartow, for Appellee.

ALTENBERND, Acting Chief Judge.

The State of Florida appeals an order dismissing child abuse charges against Jeffrey McDonald. The trial court, bound by the First District's decision in Wilson v. State, 744 So.2d 1237 (Fla. 1st DCA 1999), held that Mr. McDonald's common law parental privilege to use corporal punishment on his child prohibited a charge of "simple" or third-degree felony child abuse. See § 827.03(1), Fla.Stat. (1999). After the trial court rendered its decision, the Fourth District issued its opinion in Raford v. State, 26 Fla. L. Weekly D246, ___ So.2d ___, 2001 WL 40265 (Fla. 4th DCA Jan. 17, 2001), expressly conflicting with the First District's decision in Wilson. We conclude that Wilson does not accurately reflect the current state of the criminal child abuse statutes and, accordingly, reverse the trial court's order of dismissal. After recent amendments to the child abuse statutes, a father's "privilege" to reasonably discipline a child does not bar prosecution for simple child abuse when a beating results in bruising severe enough to require the child's treatment at a hospital. The fact that the injuries are not permanent injuries, but heal after medical treatment, is not a bar to prosecution.

Although the common law's recognition of a father's right to discipline a child "in a reasonable manner"¹ apparently prevented a father's prosecution for simple battery, we are unaware of any "common law privilege" that provides special protection to a parent when charged with the separate, statutory crime of child abuse. Indeed, the statutory crimes of child abuse and cruelty to children appear to have been created by legislatures, in part, to avoid the limitations imposed by the judiciary within the common law. See Kama v. State, 507 So.2d 154, 156-57 (Fla. 1st DCA 1987)

. The Florida Legislature has prudently continued the common law tradition permitting "reasonable" parental discipline. This tradition, however, is evinced by the elements of the statutory offenses created by the legislature and not by some separate, unwritten privilege created by the judiciary. Our current child abuse statutes do not exempt parents from prosecution for child abuse, but attempt to define the boundary between permissible parental discipline and prohibited child abuse.

In light of recent amendments to chapter 39, Florida Statutes (1999), and chapter 827, we conclude that the legislature has placed some restrictions upon the types of physical punishment that can legitimately be imposed as discipline. Of equal significance, the legislature has modified the penalties for these offenses so that minor abuses of parental discipline can be treated as misdemeanors, more serious problems can be classified as third-degree felonies, and the first-degree felony of aggravated child abuse can be preserved for truly aggravated circumstances.

We reverse the order of dismissal and remand to the trial court for further proceedings. Although our reasoning conflicts with that of the First District in Wilson, we are not convinced that our opinion conflicts with the outcome in Wilson because we are not inclined to believe that the act of discipline in Wilson would constitute simple child abuse under the analysis applied in this opinion. Accordingly, we decline to certify conflict at this time.

I. THE ALLEGATIONS AGAINST MR. McDONALD

On August 11, 1999, Mr. McDonald allegedly spanked his six-year-old daughter.² There were no eyewitnesses to the event other than the child and Mr. McDonald. The child sustained dark bruising covering both of her buttocks. She received medical attention at a hospital. Someone took photographs of the child's injuries, which the trial judge described as depicting bruises to the child's buttocks, as well as to the child's upper thigh and upper back.³ Thus, the conduct involved in this criminal case is not alleged to be a typical spanking by a parent who believes in the value of such corporal punishment. The State takes the position that the father inflicted an unjustifiable beating that resulted in temporary rather than permanent physical injuries to the child.

The motive or explanation for this beating is unclear. The State asserted that the child had not wiped herself or flushed the toilet after she went to the bathroom, and that this had angered Mr. McDonald. The defense argued that the punishment was in response to the child getting into a medicine cabinet, into the father's girlfriend's cigarettes, and pushing her brother.

II. THE PROCEEDINGS BELOW

The State charged Mr. McDonald with a violation of section 827.03(1). That statute provides, in pertinent part:

(1) "Child abuse" means:

(a) Intentional infliction of physical or mental injury upon a child;

(b) An intentional act that could reasonably be expected to result in physical or mental injury to a child; or

(c) Active encouragement of any person to commit an act that results or could reasonably be expected to result in physical or mental injury to a child.

Mr. McDonald moved to dismiss the information, arguing that as a parent employing corporal punishment on his child he was exempt from prosecution for this crime. See Wilson, 744 So.2d 1237

.

At a hearing on the motion, the State conceded that the evidence did not justify charging Mr. McDonald with aggravated child abuse pursuant to section 827.03(2), which provides:

(2) "Aggravated child abuse" occurs when a person:

(a) Commits aggravated battery on a child;

(b) Willfully tortures, maliciously punishes, or willfully and unlawfully cages a child; or

(c) Knowingly or willfully abuses a child and in so doing causes great bodily harm, permanent disability, or permanent disfigurement to the child.

In essence, the State maintains that Mr. McDonald exceeded the bounds of permissible discipline by using excessive force, but that his conduct was more the result of a loss of temper than a matter of willful malice. While a few state attorneys in the past may have succumbed to the temptation to charge similar conduct as "malicious punishment," this state attorney was more circumspect in charging such as a first-degree felony.

In the trial court, Mr. McDonald argued that he was exempt from the crime of "simple" child abuse so long as he was disciplining his child, irrespective of the motive. The trial court adopted the view presented by Mr. McDonald, expressing its opinion that the First District's opinion in Wilson required the dismissal of the charge. Although the mother's single, open-handed slap of her son's face that resulted in bruising in Wilson is arguably less culpable than the beating that occurred in this case, the trial court reasonably interpreted Wilson to hold that a parent is not criminally responsible for child abuse occurring in the discipline of a child unless the level of conduct meets the parameters of aggravated child abuse.

III. KAMA AND ITS PROGENY

The legal analysis of this case begins with a consideration of the First District's opinion of Kama, 507 So.2d 154. In Kama, the appellant was charged and convicted of aggravated child abuse by way of malicious punishment in violation of section 827.03(3), Florida Statutes (1985), for his conduct in disciplining his stepson. Witnesses to the abuse testified that the stepson was kicked, punched, and spanked. The child's injuries, however, consisted mainly of severe bruising. Mr. Kama appealed his conviction, alleging that he was entitled to a jury instruction on the lesser-included offenses of "simple" child abuse, at that time a misdemeanor, and simple battery. The First District, over the strong dissent of Judge Erwin, disagreed.

The Kama court recognized the "well established principle that a parent, or one acting in loco parentis, does not commit a crime by inflicting corporal punishment on a child subject to his authority, if he remains within the legal limit of that authority." 507 So.2d at 156. Thus, the court held:

The determination that a parent, or one standing in the position of a parent, has overstepped the bounds of permissible conduct in the discipline of a child presupposes either that the punishment was motivated by malice, and not by an educational purpose; that it was inflicted upon frivolous pretenses; that it was excessive, cruel or merciless; or that it has resulted in "great bodily harm, permanent disability, or permanent disfigurement."

507 So.2d at 155 (emphasis added). The Kama court then examined the legislative history involving child abuse. It concluded that the statutory scheme then existing in sections 827.03 and 827.04, Florida Statutes (1985), which separated the crime of aggravated child abuse from "simple" child abuse and defined "simple" child abuse in terms of "permitting" injury to a child, indicated a legislative intent to draw a clear line between acceptable discipline and criminal conduct. According to Kama, that clear line provided that a punishing parent "crossed the line" only when the parent's conduct rose to the level of aggravated child abuse. Therefore, the court concluded that the law permitted a parent, by privilege, to commit a simple battery or "simple" child abuse, and a parent doing so could not be charged with those crimes. Under this rationale, a parent crossing that line would be charged with aggravated child abuse and could not claim the benefit of a jury instruction on the lesser-included offense of simple child abuse. Many subsequent cases citing Kama did so in this same context—to affirm a conviction for aggravated child abuse for instances of severe abuse, even if the trial court...