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State v. Lawrence Wilder

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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2000 ME  32   
Docket:	Cum-99-392
Argued:	January 4, 2000
Decided:	February 24, 2000




	[¶1]  This appeal requires identification of the border between a
parent's justified use of physical force to control a child and a criminal
assault.  Lawrence Wilder appeals from a decision of the Superior Court
(Cumberland County, Perkins, A.R.J.), which affirmed a judgment of the
District Court (Portland, Bradley, J.) finding him guilty of three counts of
assault, 17-A M.R.S.A. § 207(1) (1983) (Class D), on his nine-year-old son.{1} 
Wilder contends that the District Court: (1) misapplied 17-A M.R.S.A.
§ 106(1) (1983) to disregard the parental control justification for his acts;
(2) erred in admitting hearsay testimony by a police officer as a prior
consistent statement; (3) improperly admitted and considered testimony
regarding his prior gross sexual assault conviction; and (4) imposed a
sentence greatly disparate from the prosecutor's pretrial plea offer.  Because
the evidence in this case is insufficient to support the convictions beyond a
reasonable doubt when 17­p;A M.R.S.A. § 106(1) is properly applied, we
vacate the convictions and remand for entry of a judgment of acquittal.  
	[¶2]  At the time of trial, Lawrence Wilder and Bernice Landry had
been divorced for eight years.  They have a daughter and a son from their
three-year marriage.  Pursuant to the divorce, Wilder had responsibility for
his son on many weekends and during some school vacations, a pattern that
had continued for about a year.  The events at issue in this case arose during
the April 1998 school vacation when the son, then nine years old, stayed
with his father for a week.  Previous times when the father and son were
together had apparently gone without significant incident.  
	[¶3]  The son was the only witness to the events who testified at trial. 
His testimony, regarding each of the three incidents, was as follows:

A.  First Charge

	[¶4]  Regarding the first assault charge, the son testified:  "We were
playing a little board game and I was talking too much, so he turned around
and grabbed me on the shoulder and told me to shut up."  The incident was
then described, in the boy's testimony, as follows:  
Q.	Now, you said that he told you to shut up.  What were you
A.	I was talking too much.
Q.	Do you talk a lot?
A. 	Yes.
Q.	Does that annoy people sometimes?
A. 	Yes.
Q.	Were you being fresh to your dad?
A.	No.
Q.	Were you saying anything bad to him?
A.	No.
Q.	Okay.  And when you say he grabbed you, can you show
	the Judge where he grabbed you on your body?
A.	I don't remember what side it was.	
Q.	What part of your body was it?
A.	My shoulder.
Q.	Did he grab you with one of his hands or both of his
A.	Just one.
Q.	Okay.  How did it feel when he grabbed you?
A.	He-he squeezed so it kinda hurt.
Q.	Okay.  How long did he squeeze?
A.	Not for long.
Q.	Okay.  What did you do when he squeezed you?
A.	I just had to sit there.
Q.	Okay.  Did you cry?
A.	No.
Q.	Did you say anything to him?
A.	No.
Q.	How did it make you feel?
A.	Angry.
Q.Mmhmm.  Did you--did you show him that you were 	angry
in any way?
A.	No.
Q.	Did you notice whether you had any marks on your
	shoulder from that?
A.	I knew I may have something on there, but I didn't know
	for sure I would have a bruise on there.
	[¶5]  Describing this first incident in its brief, presumably in a way
most favorable to its position, the State asserts that, "[The boy] was talking
too much, although he was neither being fresh or saying anything bad to
appellant, and appellant grabbed him on the shoulder and told him to shut
up.  Appellant squeezed [his son] hard enough to hurt him."

 B.  Second Charge

	[¶6]  The second assault charge is based on the following testimony
about an event which occurred "a couple days later."  The son testified:  "We
were still sitting in the living room, and we were playing a game again.  And
I was still talking too much, and he just grabbed me again. . . .  [H]e grabbed
me in the same shoulder."  
	[¶7]  The incident was further described in the following colloquy:  
Q.	Okay.  When he grabbed you, did he grab you with one
	hand or two hands?
A.	One hand.
Q.	Was it the same as the first time it happened?
A.	Yes, it was.
Q. 	And it was the same spot?
A.	Yes.
Q.	How did it feel?
A.	It made me angry and kinda sad that he had to take his
	aggression out on me.
Q.	Okay.  Did it hurt you?
A.	Yes, it did.
Q.	Was it--did it hurt more or less than the first time it
A.	It hurt a little bit more since he did it in the same spot.
	[¶8]  Asked later: "What did you do after he grabbed you?"  The son
responded:  "We just started playing the game again."  
	[¶9]  In its brief, the State describes the second assault charge as
follows:  "Once again, when [the boy] was talking too much, appellant
grabbed him on the same shoulder.  [The boy] was not mouthing off and was
neither rude nor fresh.  This time the pain was greater since appellant
grabbed [him] in the same spot."
C.  Third Charge

	[¶10]  The third assault charge was based on the following testimony:  
Q.	Okay.  Was there another incident that happened while
	you were at your dad's?
A.	Yes.
Q.	Can you talk about that?
A.	It was kinda at the last quarter of the time I spent with
	my dad.  And we were on Martin Point Bridge, on the
	Portland side, and we were parked waiting for the rain
	to stop to go fishing.  And I was talking about a movie
	that we saw the night before that.  And he said I was over
	exaggerating, so he grabbed me on the--he put--grabbed
	me on the mouth--over my mouth and said "Shut up." 
	And he squeezed like he usually--like he did the first two
	times--enough to make a bruise.
Q.	Okay.  How did it feel when he squeezed your mouth?
A.	It made me angry, and it hurt.
Q.	Can you show the Judge how he grabbed you with your
	own hand?  Can you show where he put his hand?
A. 	Well, he reached over and he put his hand like that.
Q.	Okay.  And you said that it bru--your face bruised?
A.	Yes.
Q. 	Where were the bruises?
A.	The bruises were--there were four fingers over this side
	and one big thumb over there.
Q.	How--when did you first notice those bruises?
A.	I didn't notice those bruises.  My mother pointed them
	out to me.
Q.	After you got home?
A.	Yes.
	[¶11]  Describing the third assault charge in its brief, the State
asserts:  "Appellant claimed that [his son] was exaggerating, then grabbed
[the boy] on his mouth, squeezed and said[,] 'Shut up.'"
	[¶12]  Thus, in each of the three incidents, when Wilder "grabbed"
his son, he caused transient pain and minor, temporary bruises.
	[¶13]  When the son returned home he was questioned by Bernice
Landry, as was her regular practice, as to whether he had been hit by his
father.  She also asked him about a bruise on his face.  Initially the boy gave
his mother another explanation for the bruise because he was concerned
that Landry would respond to the bruises by attempting to have Wilder
jailed;  "I thought my mom would put him in jail."  
	[¶14]  Responding to her observations, Landry called the Department
of Human Services, went to Westbrook Hospital, contacted the Cumberland
Police, and reported the events to a school counsellor.  The incident was
investigated by a Cumberland police officer, who took a report from the boy. 
The matter was then presented to the District Attorney's Office, and
prosecution on three counts of assault was initiated.
	[¶15]  The case was tried in the District Court in November 1998.  At
the close of the State's case, and again at the close of all of the evidence, the
defense requested acquittal arguing that the justification for parents using
physical force to prevent or punish misconduct by their children, 17­p;A
M.R.S.A. § 106(1),{2} prevented conviction by proof beyond a reasonable doubt
on the available evidence.  
	[¶16]  In its findings at the close of trial, the court concluded that the
elements of assault--intentionally, knowingly, or recklessly causing bodily
injury--had been proven beyond a reasonable doubt for each of the three
incidents.  The court also ruled that the parental control justification "does
not apply here."  The court determined that: 
There is no evidence of misconduct in this record, or a
reasonable inference that could be drawn from the evidence in
this record as to misconduct.  I don't find that excessive talking
and exaggerating, in and of themselves, without some further
evidence, would rise in any way to a level of misconduct as it's
plainly defined.
	[¶17]  The court found Wilder guilty on each charge.  He was
sentenced on one charge to 364 days in the county jail with all but 90 days
suspended and a year's probation.  On the other two charges he was given a
consecutive sentence of 364 days, all suspended and a year's probation, for a
total sentence of 728 days, all but 90 days suspended and 2 years probation.{3} 
One of the conditions of probation, also a bail condition, was that Wilder
have no contact with his son.  The record indicates that the sentence was
motivated, in part, by the court's concern that Wilder had been convicted of
gross sexual assault against a daughter a number of years in the past.
	[¶18]  This appeal followed Wilder's unsuccessful appeal to the
Superior Court. 
	[¶19]  Where the Superior Court acts as an intermediate appellate
court, we review directly the judgment of the District Court.  See Barclay v.
Eckert, 2000 ME 10, ¶ 8; Johnson v. Smith, 1999 ME 168, ¶ 5, 740 A.2d
579, 581.  
	[¶20]  A parent has a fundamental liberty interest in maintaining a
familial relationship with his or her child.  See Quilloin v. Walcott, 434 U.S.
246, 255 (1978); Stanley v. Illinois, 405 U.S. 645, 651 (1972); Wilkinson ex
rel. Wilkinson v. Russell, 182 F.3d 89, 103-04 (2d Cir. 1999); In re
Alexander D., 1998 ME 207, ¶ 14, 716 A.2d 222, 226-27; In re Randy Scott
B., 511 A.2d 450, 452 (Me. 1986).  This fundamental liberty interest
includes the right of parents "to direct the upbringing and education of
children,"{4} including the use of reasonable or moderate physical force to
control behavior.{5}  "The parent may be subject to the criminal law when his
punishment of the child exceeds the bounds of reason and moderation." 
State v. Coombs, 381 A.2d 288, 289 (Me. 1978), (addressing the status of
the law before the effective date of the Criminal Code, but citing 17-A
M.R.S.A. § 106 in support of the statement of the law).  A parental privilege
to use moderate or reasonable physical force, without criminal liability, was
recognized at common law:  "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."{6}  
	[¶21]  Today a parent's privilege to exercise physical control over a
child is recognized by Maine law in 17-A M.R.S.A. § 106(1).  The 1975
comment to section 106, which accompanied the adoption of the Criminal
Code, notes that section 106(1) is based on the former crime of "cruelty to
children,"{7} which prohibited a parent, guardian, or other custodian from
"cruelly treat[ing]" or inflicting "extreme punishment" on a child.  See 17-A
M.R.S.A. § 106 cmt. (1975).  The comment states that section 106(1),
"would appear to be the same rule as is implied in the statutory prohibition
against extreme punishment."  See id.
	[¶22]  Since adoption of the Criminal Code, we have only had one
occasion to address the parental discipline justification, and the facts in that
case were not close.  In State v. Dodd, 503 A.2d 1302 (Me. 1986), we
affirmed a conviction where a defendant spanked a three-year-old child to
stop her from crying, taped her ankles and hands together, taped her mouth
shut and hung her from a door knob by her ankles on two occasions for a
total of over twenty minutes.  See id. at 1303-04.  We addressed the parental
control justification in a footnote stating that:  "[t]he trial justice had ample
grounds to conclude that the defendant's conduct went far beyond being a
'reasonable degree of force' to discipline."  Id. at 1304 n.2.  
	[¶23]  With this background, we must analyze the District Court's
determination that the parental control justification "does not apply here."
In determining whether facts at trial put a statutory justification at issue, the
trial court must consider the evidence in the light most favorable to the
defendant.  See State v. Collin, 1999 ME 187, ¶ 11, 741 A.2d 1074; State v.
Sullivan, 1997 ME 71, ¶ 6, 695 A.2d 115, 117; State v. O'Brien, 434 A.2d 9,
13 (Me. 1981).  The source of the evidence makes no difference, either side
may introduce evidence which generates a justification.  See State v. Begin,      
652 A.2d 102, 106 (Me. 1995).  Thus, although Wilder did not testify, his
son's testimony could put sufficient facts in evidence to place the section
106(1) justification at issue in the trial.  
	[¶24]  The evidence here is that the triggers for Wilder's exercise of
parental control were talking too much or exaggerating.  Taking this
evidence most favorably to the parent, as we must, talking too much which
can "annoy people sometimes" is a justifiable basis for a parent's exercising
control over a child to prevent or punish misconduct.{8}  Likewise,
exaggerating, which may be construed as misstating or lying, is a justifiable
basis for a parent's exercising control to prevent or punish misconduct. 
Certainly we cannot rule, as a matter of law, that talking too much or
exaggerating is not a basis for disciplining or controlling a child.  But that is
a ruling we would have to make to uphold the District Court's determination. 
The record contains sufficient evidence to place the parental control
justification at issue for each of the three assault charges.
	[¶25]  Once a justification is placed at issue as a result of evidence
presented at trial, "the state must disprove its existence beyond a
reasonable doubt."  17-A M.R.S.A. § 101(1) (Supp. 1999).  See State v.
Hernandez, 1998 ME 73, ¶ 7, 708 A.2d 1022, 1025; Sullivan, 1997 ME 71,
¶ 6, 695 A.2d at 117; Begin, 652 A.2d at 106.  
	[¶26]  The charge here was assault, 17-A M.R.S.A. § 207(1), which
requires proof that a defendant caused bodily injury "intentionally,
knowingly, or recklessly."  See 17-A M.R.S.A. § 207(1).  Accordingly,
proving beyond a reasonable doubt that the force that Wilder used and his
belief that such force was necessary to control his child were unreasonable,
is not enough.  The Criminal Code in effect at the time of these events
specified that:  
If a defense provided under this chapter is precluded solely
because the requirement that the actor's belief be reasonable has
not been met, he may be convicted only of a crime for which
recklessness or criminal negligence suffices, depending on
whether his holding the belief was reckless or criminally
17­p;A M.R.S.A. § 101(3) (1983), amended by P.L. 1999, ch. 358, § 1
(effective Sept. 18 1999).  Thus, to sustain a conviction for assault where the
parental control justification is generated, the State had to prove, at a
minimum, that (1) the force Wilder used was reckless; and (2) Wilder's
belief that such force was necessary to control his son and prevent
misconduct was reckless.{9}  See Sullivan, 1997 ME 71, ¶ 9, 695 A.2d at
118-19; State v. Davis, 528 A.2d 1267, 1269-70 (Me. 1987); State v. Smith,
472 A.2d 948, 951 (Me. 1984). 
	[¶27]   In 1999, by legislation not applicable to this case, section
101(3) was amended to clarify the law by placing into the law the
definitional prerequisites for conviction that had previously been
incorporated by reference from the definition of recklessness.  See 17-A
M.R.S.A. § 103(3) (Supp. 1999).  The law now specifies that, where
recklessness is an element of a crime, as it is here, and the reasonableness
of one's belief is at issue due to a justification defense, a person may be
convicted "only if holding the belief, when viewed in light of the nature and
purpose of the person's conduct and the circumstances known to the
person, is grossly deviant from what a reasonable and prudent person would
believe in the same situation." Id.  This clarifying language essentially
incorporates existing law on the recklessness standard.  Cf. Sullivan, 1997
ME 71, ¶ 9, 695 A.2d at 118-19; Smith, 472 A.2d at 951; Maine Jury
Instruction Manual, § 6-56 (1999).  
	[¶28]  Accordingly, the District Court erred in (i) refusing to consider
the parental control justification; and (ii) not requiring the State to prove
beyond a reasonable doubt that the force Wilder used was reckless and that
his belief that such force was necessary for parental control was reckless or
"grossly deviant from what a reasonable and prudent person would believe in
the same situation."
	[¶29]  At this point we must determine whether to proceed to address
the evidentiary issues raised on the appeal and remand for additional
findings or a new trial or remand for a judgment of acquittal if, as a matter of
law, the evidence presented was insufficient to support the convictions. 

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