Commonwealth v. Dobson ( 2017 )

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16-P-670 Appeals Court
COMMONWEALTH vs. JANERA W. DOBSON.
No. 16-P-670.
Suffolk. March 10, 2017. - October 3, 2017.
Present: Milkey, Hanlon, & Lemire, JJ.
Assault and Battery by Means of a Dangerous Weapon. Parent and
Child, Discipline. Child Abuse. Practice, Criminal,
Required finding.
Complaint received and sworn to in the Dorchester Division
of the Boston Municipal Court Department on May 5, 2014.
The case was heard by Catherine K. Byrne, J.
Peter A. O'Karma for the defendant.
Kathryn E. Leary, Assistant District Attorney, for the
Commonwealth.
HANLON, J. On December 16, 2014, following a jury-waived
trial in the Dorchester Division of the Boston Municipal Court,
the defendant, Janera W. Dobson, was convicted of assault and
battery by means of a dangerous weapon; she had been charged
with striking her five year old child in the face with a leather
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belt. See G. L. c. 265, § 15A(b). On appeal, she contends that
the Commonwealth failed to prove that her behavior was not
privileged as parental discipline. We affirm.
Background. We recite the facts as the judge could have
found them. At approximately 5:20 P.M. on May 2, 2014, Boston
Police Officer Brendon Cahill received a radio call to respond
to an incident at 45 School Street, in the Dorchester section of
Boston. There, he encountered a five year old child and his
father standing outside the building. The child had a four-
inch-long straight red mark on his leg, and another red mark on
his face.1 After speaking to the father, Cahill entered a
second-floor apartment at 45 School Street and spoke with the
child's mother, the defendant. She told him that she had struck
her child with a belt in an attempt to discipline him, and that
she had intended to hit his buttocks, but had missed and hit him
in the face. Cahill requested that detectives come to the scene
to photograph the child's injuries.
The defendant was charged with assault and battery by means
of a dangerous weapon, a belt. At trial, the Commonwealth's
evidence consisted of Cahill's testimony and three black and
white photographs of the child with the marks; the defendant
offered only her own testimony. She testified that she had
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The child's pants were rolled up so the officer could see
the mark.
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"spanked [her son] with a belt" because "in his [kindergarten]
classroom there were people who [were] observing his class for
that day and he was very aware of who they were and what they
were doing and deliberately [her] son had acted out in class and
put on a riot for them which is not his usual behavior." On
cross-examination, the defendant agreed that the belt was
leather. The judge found her guilty.
Discussion. The defendant appeals, arguing that she was
entitled to a required finding of not guilty because her
behavior was protected by the parental discipline privilege,
citing Commonwealth v. Dorvil, 472 Mass. 1 (2015), where the
Supreme Judicial Court expressly recognized the existence of
that privilege and discussed its elements in depth. Pursuant to
the privilege,
"[A] parent or guardian may not be subjected to
criminal liability for the use of force against a
minor child under the care and supervision of the
parent or guardian, provided that (1) the force used
against the minor child is reasonable; (2) the force
is reasonably related to the purpose of safeguarding
or promoting the welfare of the minor, including the
prevention or punishment of the minor's misconduct;
and (3) the force used neither causes, nor creates a
substantial risk of causing, physical harm (beyond
fleeting pain or minor, transient marks), gross
degradation, or severe mental distress."
Id. at 12. The privilege constitutes an affirmative defense,
and, thus, "where the parental privilege defense is properly
before the trier of fact, the Commonwealth bears the burden of
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disproving at least one prong of the defense beyond a reasonable
doubt." Id. at 13. In the defendant's view, the Commonwealth
failed to disprove any element of the defense. For present
purposes, we need only consider the first prong -- whether the
force used was reasonable.
"When reviewing the denial of a motion for a required
finding of not guilty, we consider 'whether, after viewing the
evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt' (emphasis in original).
[Commonwealth v.] Latimore, 378 Mass. [671,] 677 [(1979)],
quoting Jackson v. Virginia, 443 U.S. 307, 318-319 (1979). The
inferences drawn by the [fact finder] from the evidence 'need
only be reasonable and possible and need not be necessary or
inescapable.' Commonwealth v. Longo, 402 Mass. 482, 487 (1988),
quoting Commonwealth v. Casale, 381 Mass. 167, 173 (1980)."
Commonwealth v. Kelly, 470 Mass. 682, 693 (2015).
Here, the evidence was sufficient to permit the judge to
conclude that the defendant intended to strike the five year old
child in the face with the leather belt, and that she did so,
leaving a red mark still visible some time afterwards. In
addition, the marks on the child's face and leg were such that
the responding officer summoned detectives to photograph them;
the marks were still visible when the detectives arrived, and
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are visible in the photographs contained in the record. There
was no evidence as to the relative positions of the defendant
and the child when the strike occurred -- e.g., whether both
were standing, whether the defendant held the child across her
lap, and so forth. In the absence of any such evidence, and
based on the fact that the buttocks and face are on opposite
sides of the body, the judge could rely on her own "experience
and common sense," see Commonwealth v. Lao, 443 Mass. 770, 779
(2005), to discredit the defendant's explanation and conclude,
instead, that she had intended to strike the child in the face.
Leaving aside for a moment the issue of privilege, it is
clear that these facts would support a finding of guilt on the
charge of assault and battery by means of a dangerous weapon.
See Commonwealth v. Tevlin, 433 Mass. 305, 312 n.3 (2001) ("A
dangerous weapon is any instrument which, by the nature of its
construction or the manner of its use, is capable of causing
grievous bodily injury or death, or could be perceived by a
reasonable person as capable of such injury. An item is a
dangerous weapon if it is used in a way that it reasonably
appears to be capable of causing serious injury or death to
another person"). Hitting a five year old in the face with a
leather belt with sufficient force to leave a mark could well
have caused serious injury to his eyes or some other part of his
face. Cases have long acknowledged that a belt can be used as a
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dangerous weapon, particularly when employed against a child.
See, e.g., Commonwealth v. Moquette, 439 Mass. 697, 707-708
(2003); Commonwealth v. Turavani, 45 Mass. App. Ct. 909, 909 n.1
(1998).
The question then, is whether such a use of force was
reasonable, under all of the circumstances, as a matter of
parental discipline, under the principles explained in Dorvil,
supra. In evaluating the reasonableness of striking a child in
the face with a belt, the judge properly could take into account
a variety of factors, including "the child's 'age,' the
'physical and mental condition of the child,' and 'the nature of
[the child's] offense,'" among others. Dorvil, 472 Mass. at 13,
quoting from Restatement (Second) of Torts § 150 (1965). Here,
the only additional evidence was the mother's testimony that her
child had "acted out" at school on "numerous" occasions, and
that she disciplined him for having deliberately done so again
on a day when there were observers in the child's kindergarten
classroom. There was no indication that the discipline was used
for the child's safety -- for example, to keep him from going
into the street or touching something hot. On this evidence,
the judge rationally could have found that it was unreasonable
for the mother to strike her five year old child in the face
with a leather belt for unspecified misbehavior in his
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kindergarten classroom.2 See, e.g., Commonwealth v. Packer, 88
Mass. App. Ct. 585, 589 n.5 (2015) (It is for the fact finder to
determine whether the defendant's actions "constitute reasonable
parental discipline").
We also note that the parental discipline privilege
explained in Dorvil did not address the use of weapons; in that
case, the court found it significant that the defendant had been
found guilty of assault and battery, but not guilty of assault
and battery by means of a dangerous weapon. Id. at 5-6.
Compare Commonwealth v. Torres, 442 Mass. 554, 568 n.11 (2004),
cited in Dorvil, supra at 7, where the Supreme Judicial Court
determined there was no error in failing to instruct the jury on
a parent's right to use reasonable force to discipline her
children ("On any view of the evidence, [the mother's] frequent
beating of these very young children -- striking them with
different objects, inflicting blows to many parts of their
bodies, causing broken bones and plainly visible bruises --
would not come within that privilege").
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These facts also support a determination that the
Commonwealth carried its burden to disprove the third prong of
the parental discipline defense, i.e., that "the force used
. . . create[d] a substantial risk of causing[] physical harm
(beyond fleeting pain or minor, transient marks) [or] gross
degradation." Dorvil, 472 Mass. at 12. See id. at 13 ("In
evaluating the third [prong], the trier of fact must decide
whether the . . . risk of injury . . . created was, in context,
sufficiently 'extreme' as to be inherently impermissible").
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Conclusion. Viewed in the light most favorable to the
Commonwealth, we are satisfied that the evidence was sufficient
to prove that the defendant's use of force was unreasonable,
thus negating the first prong of the parental discipline
privilege. In so doing, we have in mind the court's conclusion
in Dorvil, supra at 15, "recogniz[ing] that . . . absolute
equipoise between the goals of protecting the welfare of
children and safeguarding the legitimate exercise of parental
autonomy is likely unattainable. To the extent that that is so,
the balance will tip in favor of the protection of children from
abuse inflicted in the guise of discipline."
Judgment affirmed.