STATE V. LEFEVRE, 2005-NMCA-101, 138
N.M. 174, 117 P.3d 980
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
SCOTT LEFEVRE,
Defendant-Appellant.
COURT OF APPEALS OF NEW MEXICO
2005-NMCA-101, 138 N.M. 174, 117 P.3d 980
APPEAL FROM THE DISTRICT COURT OF
BERNALILLO COUNTY, James F. Blackmer, District Judge
Released for Publication August 16,
2005.
Patricia A. Madrid, Attorney General,
Arthur W. Pepin, Assistant Attorney General, Santa Fe, NM, for Appellee
John Bigelow, Chief Public Defender,
Santa Fe, NM, Josephine H. Ford, Assistant Public Defender, Albuquerque, NM,
for Appellant
JONATHAN B. SUTIN, Judge. WE CONCUR:
MICHAEL D. BUSTAMANTE, Chief Judge, JAMES J. WECHSLER, Judge
AUTHOR: JONATHAN B. SUTIN
{1} This appeal
requires us to examine the thin line separating the parental discipline
privilege and the crime of battery when a parent uses physical force to
discipline a child. In this case, a parent angrily grabbed and held onto his
child's hand, causing discomfort and a bruise. We reverse the battery
conviction.
{2} Twelve-year-old
daughter (Daughter) and her younger brother (Son) are the children of parents
who had been divorced for several years as of the date of the incident in
January 2003 that is the subject of this appeal. They live with their mother.
Defendant is their father.
{3} Evidence before the
jury was generally along the following lines. According to Daughter, when she
and Son left school on the day of the incident, Daughter intended to make sure
that Son had all the books he needed to do his homework. Daughter would be
involved in a sports tryout that afternoon and she would be unable to help him
do his homework. In addition, Son was scheduled to visit with Defendant. While
looking in Son's backpack for an assignment sheet, someone from behind her
grabbed and squeezed Daughter's right hand "really hard." She turned
around and saw that it was her father who grabbed her hand. Daughter testified that
her father told her, "That's not your backpack" and when she stated,
"Dad, that's not fair," he replied, "I'm sick of you."
Daughter testified that Defendant's tone was harsh and that he held onto her
hand for half a minute or less. She also testified that it hurt her. Defendant
then left with Son, and Daughter went to the bathroom in the school to wash her
face after crying. Daughter then went to tryouts. She told her mother what had
occurred when her mother picked her up after tryouts. The mother asked Daughter
if she wished to speak to the guardian ad litem appointed to oversee continuing
timesharing issues after the divorce was final. However, the guardian ad litem
was unavailable. The mother asked if Daughter wanted to see a doctor, and she
said no. The mother asked if Daughter wanted to speak to a police officer and
Daughter said yes. The officer testified that he observed a bruise on
Daughter's hand. The bruise was on the top of her right hand, near the juncture
of her thumb and first finger. It was a dark red mark the size of a dime.
{4} Defendant and the
mother were separated in 1997 and divorced in 1998. Defendant stated that the
divorce and aftermath was contentious. Defendant had visitation with Daughter
once a month and visitation with Son every other weekend and every Wednesday.
Defendant would pick up Son after school and return him in the evening to a
neutral location for the mother to pick him up.
{5} Defendant testified
that on his last visit with Daughter in December 2002, she refused to go to
dinner with him, so they stayed at the neutral location and talked. During the
visit, they talked about Son, and Defendant told Daughter that he was not
getting "Wednesday notes," which were letters notifying parents of
schedules and special activities, from the school. Defendant asked Daughter to
leave the notes in Son's backpack so that he could look at them. Defendant told
Daughter that he needed to read the notes and that he would then send them on
to their mother. He further told Daughter that Son had told Defendant that she
was taking the notes out of his backpack.
{6} Defendant testified
that on the day in question he arrived early to pick up Son. After the
elementary school let out, Defendant did not see Son. The middle school let out
and he saw Daughter walk out. Defendant asked her where Son was. Daughter did
not respond and kept walking toward the elementary school. Defendant thought
that Daughter was trying to avoid him. He followed her to the elementary school
and up steps to a point that Son came around a corner and Daughter ran up to
Son, grabbed him by the shoulders, spun him around, unzipped his backpack, and
took a manila folder out. Defendant thought, "[e]nough is enough." He
went up to her, took her hand out, and said to Daughter, "I asked you not
to do that," and then he zipped the backpack closed.
{7} Defendant testified
that he was not angry, but was irritated, because Daughter was doing something
he had asked her not to do. He did not intend to hurt her; he thought he had
just lifted her hand out of the pack. There was no forcefulness and no
resistence. Defendant and Daughter did not visit following this incident.
{8} Of note was the
testimony of the guardian ad litem. Among other things, she testified that
Daughter described the incident to her as occurring outside of the building,
pointing to a place where there was a bush; whereas, Son told her that the
incident happened in the school. Later, Daughter told the guardian ad litem
that the incident happened in the school. The guardian ad litem also testified
she had been involved in other cases that were as contentious as the one
involving Defendant, the mother, and their children, Daughter, Son, and another
daughter, but that this one had gone on longer than most.
{9} Defendant was
charged with battery and abandonment or cruelty to child. He was tried in
metropolitan court. The metropolitan court dismissed the abandonment or cruelty
to child charge, but convicted Defendant of battery under NMSA 1978, §
30-3-4
(1963). Defendant obtained a de novo trial in district court.
{10} The district court
found that Defendant "intentionally touched or applied force to [Daughter]
by suddenly, without warning, and with inappropriate, unnecessary and abusive
painful force, grabbing her by her hand[.]" The court also found that the
touching was unlawful. Further, the court found that Defendant's words,
"I'm sick of you," said in an angry manner just reinforced the
finding. In Defendant's favor, the court found that his act was "not
malicious, not savage [or] painfully vindictive," was an isolated
incident, and one that the guardian ad litem was not required to report to the
Children, Youth and Families Department as child abuse.
{11} Defendant appeals
the battery conviction, arguing that his act of grabbing Daughter's hand was
privileged under a parental control justification insulating him from criminal
liability. As sub-issues, Defendant argues that (1)federal law recognizes a
fundamental right of parents to make decisions concerning care, custody, and
control of their children; (2)state law recognizes the common law parental
control justification as an affirmative defense for offensive acts which would
otherwise be punishable under the battery statute; (3)and the district court
erred in finding that the touching was unlawful, since the evidence shows
Defendant's acts to be discipline and the discipline was not excessive or
unreasonable and was therefore privileged.
1. New Mexico Recognizes the Common Law Parental
Control Privilege
{12} The United States
Supreme Court has included within the Fourteenth Amendment's liberty interest a
parent's right to direct his child's upbringing.
See
Wisconsin v. Yoder, 406 U.S. 205, 213-15
(1972);
Pierce v. Society of Sisters, 268
U.S. 510, 534-35 (1925);
Meyer v. Nebraska,
262 U.S. 390, 399 (1923). However, for the protection of the welfare of the
child the state has a right to limit parental freedom in raising children.
Prince v. Massachusetts, 321 U.S. 158, 165-67
(1944). The difficult task of prosecutors and the courts is to determine when
parental use of physical force in disciplining children violates criminal law.
The United States Supreme Court has not addressed how parental physical force
as a means of discipline is to be treated within the competing rights.
See State v.
Wilder, 748 A.2d 444, 449 n.5 (Me. 2000); Kandice K. Johnson,
Crime or Punishment:The Parental Corporal Punishment
Defense--Reasonable and Necessary, or Excused Abuse?, 1998 U.Ill. L.
Rev. 413, 426.
{13} The common law recognized
a parental privilege to use moderate or reasonable physical force.
See Wilder,
748 A.2d at 449 n.6; Johnson,
supra at
434-37. Blackstone described a parental discipline privilege in stating that a
parent "may lawfully correct his child, being under age, in a reasonable
manner," and further that, "battery is, in some cases, justifiable or
lawful; as where one who hath authority, a parent or a master, gives moderate
correction to his child, his scholar, or his apprentice."
Wilder, 748 A.2d at 449 n.6 (quoting William
Blackstone,
Blackstone's Commentaries on the Laws
of England 440 (Oxford reprint 1966), and William Blackstone,
Blackstone's Commentaries on the Laws of England
120 (1768));
see also Johnson,
supra at 434-35.
{14} Our Supreme Court in
the mid-nineteenth century followed suit.
Territory
v. Miera,
1 N.M. 387, 388 (1866) ("There are many strikings which
are not unlawful, and so are not offenses which the laws punish; such as
parents correcting their children[.]"). The New Mexico jury instruction on
the element of unlawfulness states that an unlawful touching or confinement
does not include nonabusive parental or custodial care. UJI
14-132 NMRA (citing
Miera,
1 N.M. 387). This Court has also
indicated that such a privilege exists in New Mexico.
See State v. Stein,
1999-NMCA-065, ¶ 19,
127 N.M. 362,
981 P.2d 295 (stating that, in excluding
"child" from the definition of a "household member" in the
Crimes Against Household Members Act, NMSA 1978, §§
30-3-10 to -16 (1995, as
amended through 2001), the Legislature may have been concerned that those
"new offenses . . . would abrogate the limited privilege of parents to
impose physical discipline on their own children").
{15} The common law
guidelines of reasonableness and moderation have been codified or otherwise
continued into modern day expressions of the parental discipline privilege.
See, e.g.,
Newby
v. United States, 797 A.2d 1233, 1242-43 (D.C. 2002) (stating that the
"basic conception of the parental discipline defense is reinforced by decisions
construing the common law of Maryland" to require a genuine disciplinary
purpose and moderate or reasonable force, and noting that the "`reasonable
force' standard for genuine parental discipline appears to be the common law
rule in the majority of jurisdictions");
Johnson
v. State, 804 N.E.2d 255, 257 (Ind. Ct. App. 2004) (stating that
"[i]n order to be justified, the parental discipline must not be cruel or
excessive");
State v. Arnold, 543
N.W.2d 600, 603 (Iowa 1996) (stating that Iowa "recognizes parents have a
right to inflict corporal punishment on their child, but that right is
restricted by moderation and reasonableness");
State v. Adaranijo, 792 N.E.2d 1138, 1140 (Ohio
Ct. App. 2003) (requiring a parent's force to be "proper and reasonable
under the circumstances");
State v.
Singleton, 705 P.2d 825, 827 (Wash. Ct. App. 1985) ("A parent has a
right to use reasonable and timely punishment to discipline a minor child
within the bounds of moderation and for the best interest of the child.").
{16} We hold that, in New
Mexico, a parent has a privilege to use moderate or reasonable physical force,
without criminal liability, when engaged in the discipline of his or her child.
Discipline involves controlling behavior and correcting misbehavior for the
betterment and welfare of the child. The physical force cannot be cruel or
excessive if it is to be justified. The parent's conduct is to be measured
under an objective standard.
See id. (stating that lawful force "is that
which is reasonable and moderate as objectively determined by a jury").
2. Defendant's Act Fell within the Parental
Privilege
{17} The battery offense
of which Defendant was convicted proscribes "the unlawful, intentional
touching or application of force to the person of another, when done in a rude,
insolent or angry manner." § 30-3-4. The State had the burden to prove
beyond a reasonable doubt all elements of the offense, including unlawfulness.
See State v.
Parish,
118 N.M. 39, 44-45,
878 P.2d 988, 993-94 (1994) (stating that a
"defendant does not have the burden of proving . . . self-defense");
UJI 14-132 (comm. cmt.) (stating that the State must prove unlawfulness beyond
a reasonable doubt). When a parent's behavior falls within the parental
privilege, the act is not unlawful. UJI 14-132 (comm. cmt.) Thus, when a
question of parental privilege exists, the State must prove beyond a reasonable
doubt that the parent's conduct did not come within the privilege.
Wilder, 748 A.2d at 451;
see Parish,
118 N.M. at 45, 878 P.2d at 994.
{18} In considering
whether the State has disproved the justification, the court or jury is
entitled to consider such factors as "the age, physical condition, and
other characteristics of a child as well as with the gravity of the child's
misconduct."
Arnold, 543 N.W.2d at
603;
see also Singleton, 705 P.2d at 827 (considering also
"the kind of marks or wounds inflicted on the child's body [and] the
nature of the instrument used for punishment"). Nevertheless, there must
exist some threshold at which parental physical force in the discipline of
children is justified even though, technically, the elements of the battery
offense can be proven.
See Wilder, 748 A.2d at 452-53, 456 ("There is
also a basis in law to set a threshold for the type of physical control of
children by parents that will not result in criminal conviction absent special
aggravating circumstances[,]" even recognizing that the district court
could find "the technical elements of assault were proven.").
{19} We recognize that in
reviewing a conviction we are to view "the evidence in the light most
favorable to upholding the verdict."
State
v. Mora,
1997-NMSC-060, ¶ 27,
124 N.M. 346,
950 P.2d 789. However, there
must exist for parents a harbor safe from prosecutorial interference in parental
judgment.
See Model Penal Code and Commentaries § 3.08, cmt. 2
(1985) ("[S]o long as a parent uses moderate force for permissible
purposes, the criminal law should not provide for review of the reasonableness
of the parent's judgment."). In our view, an isolated instance of moderate
or reasonable physical force as that in the present case that results in
nothing more than transient pain or temporary marks or bruises is protected
under the parental discipline privilege.
See
Wilder, 748 A.2d at 453-56;
Adaranijo, 792 N.E.2d at 1139-40;
see also Johnson,
supra
at 471-72 (proposing a model statute permitting force that does not result in
physical injury to the extent the force does not place the child at certain
substantial risk and defining physical injury to exclude "transient red
marks or temporary pain").
{20} This protection for
parents should exist even if the parent acts out of frustration or short
temper. Parents do not always act with calmness of mind or considered judgment
when upset with, or concerned about, their children's behavior. Nor do parents
always act pursuant to a clearly defined circumstance of discipline or control.
A reaction often occurs from behavior a parent deems inappropriate that
irritates or angers the parent, causing a reactive, demonstrative act. Heat of
the moment must not result in immoderate physical force and must be managed;
however, an angry moment driving moderate or reasonable discipline is often
part and parcel of the real world of parenting with which prosecutors and
courts should not interfere. What parent among us can say he or she has not
been angered to some degree from a child's defiant, impudent, or insolent
conduct, sufficient to call for spontaneous, stern, and meaningful discipline?
{21} In the present case,
no reasonable minds could differ on the legal consequence of Defendant's acts.
The district court did not find or determine that Defendant had no legitimate
disciplinary purpose whatsoever in mind. Even were a disciplinary purpose
questionable or obscure, Defendant's act was an isolated one. He reacted when
he saw Daughter with her hand in Son's pack. His demonstrative act, even if an
angry touching, resulted in only a temporary, dime-sized bruise on Daughter's
hand and transient pain. The force was relatively inconsequential; the injury
was marginal. Defendant's conduct was not cruel or excessive, and considering
the totality of circumstances, it was moderate and reasonable. "If such
acts, ... with no apparent evidence of any aggravating factors, are sufficient
to support an assault charge, then any physical contact by a parent with a
child that hurts the child may support an assault conviction if the State
elects to prosecute."
Wilder, 748
A.2d at 456.
{22} We determine that
Defendant's conduct did not reach beyond the point of departure from justified
parental discipline and was privileged, and that, as a matter of law, the
evidence in this case was insufficient to support a determination of guilt on
the charge of battery beyond a reasonable doubt.
{23} We reverse
Defendant's conviction of battery and remand with instructions to enter a
judgment of acquittal.
MICHAEL D. BUSTAMANTE, Chief Judge