Opinion
No. 106,528.
2012-07-27
STATE of Kansas, Appellee, v. Arlanda Lee McDUFFIE, Appellant.
Appeal from Finney District Court; Philip C. Vieux, Judge. Douglas C. Spencer, of Spencer & Spencer, P.A., of Oakley, for appellant. Seth Lowry, assistant county attorney, John P. Wheeler, Jr., county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Finney District Court; Philip C. Vieux, Judge.
Douglas C. Spencer, of Spencer & Spencer, P.A., of Oakley, for appellant. Seth Lowry, assistant county attorney, John P. Wheeler, Jr., county attorney, and Derek Schmidt, attorney general, for appellee.
Before ARNOLD–BURGER, P.J., McANANY, J., and LARSON, S.J.
MEMORANDUM OPINION
PER CURIAM:
This is Arlanda Lee McDuffie's direct appeal of his conviction of battery arising out of an incident in July 2010 when he spanked his girlfriend's 2–year–old son.
McDuffie argues on appeal that the jury was improperly instructed on the defense of parental discipline and the State presented insufficient evidence to convict him of battery.
We hold the jury was properly instructed and there was substantial competent evidence to support the verdict. Consequently, we affirm.
Factual and Procedural Background
In July 2010, McDuffie was living with his girlfriend, Sarah Felix, her 2–year–old son, O.F., her mother, and her brother. McDuffie is not O.F.'s biological father, but both Felix and McDuffie considered O.F. McDuffie's child because he had been involved in O.F.'s life since he was 2 months old, providing financial and emotional support to the child. Felix considered McDuffie responsible for maintaining discipline of O.F.
On July 27, Felix and her mother left the residence at 7:30 a.m. so Felix could take her mother to work, leaving McDuffie to watch over O.F. Sometime between 10:30 and 11:30 a.m., Felix returned home. At the time, O.F. was asleep in his room. At approximately noon, Felix went into O.F.'s room to change his diaper. While doing so, Felix noticed that O.F. had purple bruising on his butt and thighs, indicating to Felix that someone had spanked O.F.
Felix asked McDuffie about the bruises and McDuffie said he had spanked O.F. because the child had cussed. Because she believed that McDuffie had gone too far, Felix told McDuffie to move out of the house and McDuffie did so. Felix then contacted her probation officer because she was afraid she would get blamed for O.F.'s injuries and she wanted to get advice about what to do. Felix told her probation officer what happened and said she was scared and did not know what to do. Felix told her probation officer that she thought O.F. was okay but she did not want SRS to take the child away from her. The probation officer told Felix to contact the police and report the incident.
At the law enforcement center, Felix spoke with Deputy Sheriff Doug Dumler about the incident and showed him the marks on O.F.'s butt and thighs. Dumler later described the marks as “large bruises, like welts” which were “raised and puffy.” After seeing the marks, Dumler contacted Investigator Timothy Shultz of the Finney County Sheriff's Office, and Shultz met them in a meeting room where Felix again stated what had happened earlier that day. Shultz examined O.F. and noted that he had a lot of bruising (some redness and swelling) on his left butt cheek and thigh and had a similar amount of bruising (but slightly less evident) on his right butt cheek and thigh.
Shultz photographed the marks on O.F. These photographs were admitted into evidence at trial. The pictures clearly show bruising and redness between O.F.'s left butt cheek and thigh, a distance of about 5 inches, and a reddish mark on his right thigh. Dumler said that the photos did not fully capture the fact that the marks consisted of “raised welts.”
Later that day, Dumler and Shultz contacted McDuffie at his job. They asked him about the injuries that O.F. had sustained, and McDuffie said that once Felix and her mother left that morning, O.F. got upset and began crying. According to McDuffie, O.F. called him a bitch. In response, McDuffie said that he spanked O.F. three times. After doing this, McDuffie said that O.F. stopped crying. McDuffie also said that after speaking to O.F. about why he had spanked him, everything was fine.
Shultz said McDuffie answered all of his questions and was cooperative during the 30–minute interview. After speaking with McDuffie, Shultz placed him under arrest.
Two days later, Felix came to the law enforcement center and asked Shultz to drop the charges against McDuffie. Shultz told her the incident report had been sent to the county attorney's office and she would have to speak with someone there.
The State charged McDuffie with alternative counts of abuse of a child and aggravated endangerment of a child, and one count of aggravated battery in violation of K.S.A. 21–3414(a)(2)(B). The alternative counts were later dismissed, and the case proceeded to a jury trial on the single count of aggravated battery.
At trial, Felix said she had changed her mind about the appropriateness of contacting the police after seeing the bruising on O.F. When asked why she changed her mind, she said: “Because I know that [McDuffie] didn't intend to do what he did. And, I mean, it was a family we had.” She also admitted that she asked the county attorney not to prosecute McDuffie because she knew that his intent was to discipline O.F. and not to cause the child any harm. She said that she would trust McDuffie with O.F. in the future.
McDuffie testified at trial and said that he had been responsible for disciplining O.F. He said that when disciplining O.F., he would first speak to O.F. about his behavior and if that did not work, he would proceed to spank the child. He said that on July 27 after Felix had left the house, O.F. started having a fit where he cried and came into McDuffie's room. McDuffie claimed that when he told O .F. to be quiet, the child called him a “bitch” and a “puto,” words O.F. had learned from listening to McDuffie and Felix argue. After O.F. said these words, McDuffie spanked the child three times using only his open hand. McDuffie said O.F. stopped crying after being spanked.
McDuffie said he had spanked O.F. prior to July 27 and spanking had been an effective form of discipline in the past. He said he never intended to hit O.F. hard enough to harm him, but only to provide discipline.
The jury was instructed on aggravated battery and the lesser included offense of battery. During the jury instruction conference, McDuffie requested an instruction on the defense of parental discipline, which stated: “ ‘It is a defense to the charge of aggravated battery and battery if a parent's use of physical force upon a child was reasonable and appropriate and with the purpose of safeguarding the child's welfare or maintaining discipline.’ “ Ultimately, the district court gave the following parental discipline instruction to the jury:
“The defendant raises the defense of parental discipline.'
“It is a defense to battery and aggravated battery if a parent disciplined his child with the use of physical force that was reasonable and appropriate and with the purpose of safeguarding the child's welfare or maintaining discipline.
“Evidence in support of this defense should be considered by you in determining whether the State has met its burden of proving that the defendant is guilty. The State's burden of proof does not shift to the defendant.”
The jury found McDuffie guilty of battery. The district court imposed an underlying jail sentence of 60 days and placed McDuffie on probation for 6 months. McDuffie has appealed raising the two issues first set forth.
Analysis of Issues on Appeal
McDuffie first argues the district erred in instructing the jury on his defense of parental discipline. He contends that based on State v. Wade, 45 Kan.App.2d 128, 245 P.3d 1083 (2010), rev. denied 292 Kan. 968 (2011), the district court should have explicitly instructed the jury that if it believed he used reasonable and appropriate physical force in disciplining O.F., it should acquit him of both aggravated battery and battery.
The instruction on parental discipline which McDuffie requested was modified only slightly by the court and ultimately given to the jury. But, McDuffie did not request the specific instruction which he now argues should have been given to the jury. Nor did he make any objection to the instruction which was given. Accordingly, we apply a clearly erroneous standard of review. “An instruction is clearly erroneous only if the reviewing court is firmly convinced there is a real possibility the jury would have rendered a different verdict if the trial error had not occurred. [Citation omitted.]” State v. Martinez, 288 Kan. 443, 451–52, 204 P.3d 601 (2009).
“ ‘When the trial court refuses to give a requested instruction, an appellate court must review the evidence in a light most favorable to the party requesting the instruction.’ “ State v. Ransom, 288 Kan. 697, 713, 207 P.3d 208 (2009). Although McDuffie did request a parental discipline instruction, it was given with only slight changes and language added favorable to McDuffie. As we will develop, even under the above standard of review, the instruction given was not erroneous.
McDuffie's argument on appeal is primarily based on isolated language from State v. Wade, a case involving a father who had been convicted of battering his 15–year–old son in which we held the father's due process rights were violated by the district court's failure to provide the jury with an instruction setting forth a correct statement of the substantive law regarding the defense of parental discipline. 45 Kan.App.2d at 140.
It appears that McDuffie construes the Wade panel's statement that “[n]othing in the instructions allowed the jury to acquit Wade if the jury believed he used reasonable and appropriate physical force in disciplining J.W.,” 45 Kan.App.2d at 140, as requiring a district court—in addition to instructing the jury on the substantive law regarding the defense of parental discipline—to explicitly instruct the jury that it must acquit the defendant if it believes the defendant used reasonable and appropriate physical force in disciplining his or her child. This argument is without merit because the Wade panel's statement was merely a comment on the legal consequence of failing to instruct the jury on the defense of parental discipline. In other words, by not instructing the jury that “[i]t is a defense to the charge of battery if a parent's use of physical force upon a child was reasonable and appropriate and with the purpose of safeguarding the child's welfare or maintaining discipline,” 45 Kan.App.2d at 139, the jury did not know it could acquit the defendant if it concluded that his use of physical force to discipline his child was reasonable and appropriate.
It is clear from the record that the court was familiar with the Wade decision when the jury was being instructed in McDuffie's trial. (The following notation is shown on the parental discipline instruction: “PIK 3d 52.08 & Wade—No. 102433, Dec. 2, 2010”).
And, as we have previously fully set forth in accordance with Wade, the jury in this case was instructed that “[i]t is a defense to battery and aggravated battery if a parent disciplined his child with the use of physical force that was reasonable and appropriate and with the purpose of safeguarding the child's welfare or maintaining discipline.” This instruction accurately informed the jury on the defense of parental discipline and, consequently, instructed the jury that it had to acquit McDuffie if it concluded he used reasonable and appropriate physical force in disciplining O.F.
Further, the paragraph added by the court to McDuffie's slightly altered requested instruction correctly cautioned the jury: “Evidence in support of this defense should be considered by you in determining whether the State has met its burden of proving that the defendant is guilty. The State's burden of proof does not shift to the defendant.” We hold the instruction as given was a correct statement of the law. It follows the teachings of Wade. It was not erroneous under any test or standard of review.
Finally, McDuffie argues that the State failed to present sufficient evidence to convict him of battery. In making this argument, McDuffie contends the evidence presented at trial clearly established that his conduct constituted appropriate and reasonable parental discipline of O.F. and, thus, could not constitute battery.
When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Trauttoff, 289 Kan. 793, 800, 217 P.3d 15 (2009). In determining whether there is sufficient evidence to support a conviction, an appellate court cannot reweigh the evidence, pass on the credibility of witnesses, or resolve conflicts in the evidence. State v. Swanigan, 279 Kan. 18, 23, 106 P.3d 39 (2005).
At trial, there was no dispute that McDuffie spanked O.F. The only factual question that the jury had to determine was whether the spanking was reasonable and appropriate and with the purpose of safeguarding O.F.'s welfare or maintaining discipline. By finding McDuffie guilty of battery, the jury obviously concluded that the spanking was unreasonable and inappropriate for a 2–year–old child, considering that the spanking left large bruises and raised welts on O.F.'s butt and thighs. The jury could have properly concluded that this evidence showed that McDuffie used excessive force in disciplining the child and, thus, committed battery against O.F. As noted above, we cannot reweigh the evidence, pass on the credibility of witnesses, or resolve conflicts in the evidence.
When all the evidence presented at trial is viewed in the light most favorable to the prosecution, a rational fact-finding jury could have found McDuffie guilty of battery beyond a reasonable doubt.
Affirmed.