Opinion
20060-07462
01-25-2022
L.M., Defendant, v. STATE OF DELAWARE
Michael W. Modica, Esquire, 715 North King Street, Counsel for Defendant, L -------- M ------ . James Betts, Esquire, DAG, Carvel State Office Building, Attorney for the State of Delaware.
Date of Commissioner Order: 10/12/2021
Date of ROCO Filed: 10/18/2021
Transcript Received: 12/20/2021
Date Submitted: 12/23/2021
Michael W. Modica, Esquire, 715 North King Street, Counsel for Defendant, L -------- M ------ .
James Betts, Esquire, DAG, Carvel State Office Building, Attorney for the State of Delaware.
REVIEW OF COMMISSIONER'S ORDER
MICHAEL W. ARRINGTON JUDGE
Before the Honorable Michael W. Arrington, Judge of the Family Court of the State of Delaware, is the Request for Review of a Commissioner's Order, filed on October 18, 2021, by L -------- M ----- ("Defendant"), represented by
Michael W. Modica, Esquire, against the State of Delaware ("State"), represented by Deputy Attorney General James Betts, Esquire. Defendant contests the Criminal Order ("Order") that was issued on October 12, 2021, finding that the Defendant was guilty of committing Child Abuse in the Third Degree.
PROCEDURAL HISTORY
The charges were filed on June 19, 2020. The Court held a trial on the charges of Child Abuse in the Third Degree on October 12, 2021. The Defendant was represented by Michael W. Modica, Esquire. The State of Delaware was represented by Deputy Attorney General, James Betts, Esquire.
The Court entered a finding of guilt after trial on October 12, 2021. The Defendant filed a timely Request for Review of a Commissioner's Order on October 18, 2021, contesting the Court's finding that the Defendant was guilty of Child Abuse in the Third Degree as defined 11 Del. C. § 1103(a) by "intentionally or recklessly caused physical injury to a child through an act of abuse."
On December 23, 2021, the Court received a transcript of the proceeding.
STANDARD OF REVIEW
A party may seek a review of a Commissioner's Order pursuant to 10 Del. C. § 915(d)(1), which provides:
Any party, except a party in default of appearance before a Commissioner, may appeal a final order of a Commissioner to a judge of the Court by filing and serving written objections to such order, as provided by the rules of Court, within 30 days from the date of the Commissioner's order. A judge or the Court shall make a de novo determination of those portions of the Commissioner's order to which objection is made. A judge of the Court may accept, reject, or modify in whole or in part of the Order of the Commissioner. The judge may also receive further evidence or recommit the matter to the Commissioner with instruction.
The Court reviews final Orders from Commissioners de novo. A de novo determination requires the Court to make an independent review of the record and decide whether to accept, reject, or modify the Commissioner's Order in whole or in part. A Request for Review of a Commissioner's Order must "set forth with particularity the basis for each objection." Upon taking the matter under review, a judge of the Court will make a de novo determination regarding the objected to portions of the Commissioner's Order. A judge will make an independent decision by reviewing the Commissioner's finding of fact determined at the Commissioner's hearing, any testimony and documentary evidence on the record, and the specific objections of the moving party.
Id.
Family Court Civil Rule 53.1(b).
10 Del. C. § 915(d)(1); see also Family Court Civil Rule. 53.1(e).
C.M. v. L.A., 2007 WL 4793042, at *1 (Del. Fam. Ct. Dec. 27, 2007).
TESTIMONY
The Court finds the following facts set forth in the transcript of the hearing and the exhibits from the trial:
1. Defendant is the Stepmother of the Child victim and was authorized by the Child's Father to care for the Child on June 18, 2020.
Tr. at 32:20 - 33:5; Tr. at 40:2-6.
2. On June 18, 2020, the Child was four years old and restrained in a car seat in the Defendant's car at the time of the incident.
Tr. at 42:6-7; 45:20-21.
3. The Child was screaming in the car and the Defendant told the Child he was "too old to be screaming like that."
Tr. at 43:1-2.
4. Defendant responded to the Child's behavior by "smack[ing] him on his face."
Id.
5. Defendant admitted to striking the Child once in the face.
Id.
6. Defendant removed the Child from the car, took the Child upstairs for a bath, and noticed the bruising on the Child's face approximately fifteen minutes after the incident.
Tr. at 43:20 - 44:3; 47: 4-6.
7. The New Castle County Police took photos of the Child's injuries on June 18, 2020, after the Child's Mother called the police to report the incident.
State Ex. #1.
8. Nemours Alfred I. DuPont Hospital's staff took photos of the Child's injuries on June 18, 2020, after the Child's Mother transported the Child to the hospital.
State Ex. #2.
9. Defendant testified that she "did not intend to cause injury" to the Child.
Tr. at 43:5-9.
10. Defendant testified that she was "overwhelmed" and going through "too much" by caring for the Child and the Defendant's younger child on June 18, 2020.
Tr. at 45:5-17.
DISCUSSION
Defendant makes two specific objections:
1. "There was insufficient evidence to find that Defendant intended to cause injury to the child beyond a reasonable doubt; There was insufficient evidence to find that Defendant recklessly caused physical injury to the child;" and
Request for Review of Commissioner's Order at *4(a).
2. "The charge does not allege that [Child] suffered 'physical injury' as defined by the Delaware Code, only that he suffered 'multiple red marks' on [ ]his cheek. Therefore, no crime was charged since no physical injury was alleged. The charge did not contain the elements of Child Abuse."
Request for Review of Commissioner's Order at *4(b).
The objections raised in the Motion for Review of Commissioner's Order are limited to the Commissioner's rulings supporting the decision to find the Defendant guilty of Child Abuse in the Third Degree beyond a reasonable doubt. The Court rules de novo that Defendant did "recklessly…cause[] physical injury to a child through an act of abuse…[.]"
Insufficient Evidence Claim
In the Court's findings at the conclusion of testimony and argument, the Commissioner set forth the standards for deciding if a defendant is guilty of Child Abuse in the Third Degree as defined under 11 Del C. § 1103(a)(1), "[a] person is guilty of child abuse in the third degree when…the person recklessly or intentionally causes physical injury to a child through an act of abuse and/or neglect of such child…[.]"
Abuse of a child is defined in Title 16 of the Delaware Code by reference to 10 Del. C. § 901. Under 10 Del. C. § 901(1)(b)(1), abuse of a child occurs when a person "has care, custody, or control of a child, and causes or inflicts physical injury through unjustified force as defined in § 468 of Title 11…[.]"
16 Del.C. § 902(1).
The applicable statute clarifies that force upon another "is justifiable if it is reasonable and moderate." Justification is defined as "[u]se of force by persons with special responsibility for care, discipline or safety of others."Assuming those two conditions are met for a parent (or a stepparent), the force also must have been used for the purpose of safeguarding or promoting the welfare of the child, including prevention or punishment of misconduct and intended to benefit the child. Additionally, the "size, age, condition of the child, location of the force and the strength and duration of the force shall be factors considered in determining whether the force is reasonable and moderate."
In this case, the Defendant is the stepparent of the victim. Defendant testified that she was caring for the Child while the Child's Father was working. On June 18, 2020, the Child was four-years old and was properly secured in a child car seat in the Defendant's car. During the hearing, the Defendant admitted that she told the Child "he was too old to be screaming like that." Defendant admitted that she smacked the Child on the left side of his face with her right hand while the Child was restrained in his car seat. Approximately fifteen minutes after striking the Child, the Defendant noticed the bruising and informed the Child's Father.
State's Exhibits 1 and 2 show that the Child suffered severe bruising on a large portion of his left cheek. The Child also had bruising on his left eyelid. Testimony from the Child's Mother was that the bruising lasted from Thursday, June 18, 2020, until Monday, June 22, 2020.
State Ex. #1, 2.
Bruising is a physical injury in which "blood from damaged blood cells deep beneath the skin collects near the surface of the skin resulting in black and blue marks." From the testimony and the State's exhibits, the Court finds de novo that the Defendant caused physical injury to the Child by striking the Child with her open hand.
Debra Jaliman, MD, ed., Bruises, Web MD, Nov. 15, 2021, https://www.webmd.com/skin-problems-and-treatments/guide/bruises-article/.
The next level of inquiry is whether the Defendant "recklessly or intentionally caused physical injury to the child." The injury was not caused intentionally under 11 Del. C. § 213(a). The Defendant's testimony that she did not intend to the cause the injury was not rebutted by the State. Defendant did not have the "conscious object to engage in conduct of that nature or to cause that result."
11 Del.C. § 1103(a)(1).
Recklessly is defined under 11 Del. C. § 231(e) as follows:
(e) "Recklessly". - A person acts recklessly with respect to an element of an offense when that person is aware of and consciously disregards a substantial and unjustifiable risk that the element exists or will result from the conduct. The risk must be of such a nature and degree that disregard thereof constitutes a
gross deviation from the standard of conduct that a reasonable person would observe in the situation.
An adult caretaker of a four-year-old child should be aware that striking a child in the face restrained in a car seat is beyond the conduct a reasonable person under the circumstances presented at trial. Defendant's admission that she hit the Child in his face while he was restrained indicates that the Defendant consciously disregarded the risk of harm to the Child. Therefore, the Defendant acted recklessly in causing the physical injury to the Child.
The force used was not justifiable under 11 Del. C. § 468(1). The force used was not reasonable. The Child was restrained in a car seat in the Defendant's car and posed no threats other than the inconvenience of waking the infant in a separate car seat. Defendant's statements to the Child that "he was too old to be screaming" were reasonable. However, telling a child that he is acting out, and physically hitting a child are two different matters. Striking the Child in the face and eye with such force as to cause extensive bruising was unreasonable.
The force used was not moderate. The extent of the bruising on the Child's face was significant. The Child's Mother testified that the bruising lasted from that Thursday through the following Monday. The length of time that the bruising lasted was not less than four days.
No further inquiry is required as "reasonable and moderate" are prerequisites to justification. However, even if the force were reasonable and moderate, the force was not used for safeguarding or promoting the welfare of the Child. Defendant conceded that she "smacked [the Child] on his face" while he was restrained in his car seat. Defendant's claim of postpartum depression was not supported by any medical or other expert testimony and does not provide a defense to the harm caused to a four-year-old child.
The Court finds, de novo, that the Defendant is GUILTY of Child Abuse in the Third Degree beyond a reasonable doubt.
Insufficient Charging Language
Defendant alleges that the charge in this case was insufficient. The Court rejects the claim for the following reasons.
Family Court Criminal Rule 3 notes that a Complaint is "a written statement of the essential facts constituting the offense charged." The Supreme Court addressed this issue in Addison v. State, noting that the requirement is intended "to put the respondent on full notice of what he is called upon to defend," and "to effectively preclude subsequent prosecution for the same offense.
Addison v. State, 2019 WL 1771721 at *2 (Del. Apr. 19, 2019).
The charge states:
Child Abuse 3rd recklessly intentionally cause physical injury through abuse or neglect in Violation of 11 Del.C. §1103 001a M A. Location: [ ] - Spring Crossings - Newark 19702 TO WIT: L[ } R. M[ ], on or about the 18th day of June, 2020, in the County of New Castle, State of Delaware, did open hand slap K[ ] C[ ] (WMN 04/03/2016) once on the right cheek causing multiple red marks.
The complete statement identifies each of the elements along with the basic facts supporting the charge. The identification of the wrong cheek does not create the possibility of double jeopardy for the Defendant. Additionally, the argument was not raised in Court and the Commissioner did not rule upon it.
Defendant's second objection is DENIED.
CONCLUSION
WHEREFORE, for the foregoing reasons, the Court finds that the evidence presented at trial proves beyond a reasonable doubt that Defendant committed the crime of Child Abuse in the Third Degree as defined in 11 Del.C. § 1103(a) . The Order entered on October 12, 2021, finding the Defendant guilty of Child Abuse in the Third Degree is AFFIRMED.
IT IS SO ORDERED.