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State v. Wilder, continued.

III. SUFFICIENCY OF THE EVIDENCE
	[¶30]  Determination of whether the State's evidence in this case is
sufficient to disprove the parental control justification beyond a reasonable
doubt necessarily requires some articulation of what conduct may be
justified under section 106(1).  In seeking to articulate the standards that
the evidence must meet, we begin with the basic principle of statutory
construction that criminal statutes must be construed strictly with
ambiguities resolved in favor of the accused.  See United States v. Bowen,
127 F.3d 9, 12 (1st Cir. 1997); State v. Ashby, 1999 ME 188, ¶ 6, --- A.2d
---. 
	[¶31]  The criminal liability threshold set out in section 106(1),
"reasonable degree of force" that the actor "reasonably believes is necessary
to prevent or punish such person's misconduct," is derived from the
common law and is shared by at least five other states.{10}  
	[¶32]  By way of comparison, the Model Penal Code expressly rejects
the "reasonableness" and "necessity" approach, stating that use of physical
force by a parent to control a child is justifiable if: 
(a) the force is used for the purpose of safeguarding or
promoting the welfare of the minor, including the prevention or
punishment of his [or her] misconduct, and (b) the force used is
not designed to cause or known to create a substantial risk of
causing death, serious bodily injury, disfigurement, extreme pain
or mental distress or gross degradation. . . .  
Model Penal Code § 3.08(1) (1979).  

The comment to the Model Penal Code supports this differing approach,
stating:
The formulation also differs from the Restatement [of Torts] in
not explicitly demanding that the force be reasonable.  It was
believed that so 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.  Of
course, even if a statute includes language about necessity or
reasonableness or both, it would be extraordinary for a parent
using moderate force for a permissible purpose to be prosecuted
because of misjudgment.  Thus the less stringent language of the
Model Code is unlikely to make a great practical difference, but
it does more accurately reflect the latitude that is actually given
to judgments of parents in disciplining their children.
  
Model Penal Code § 3.08, cmt. (1979). 
	[¶33]  The reliance of section 106(1) on the reasonableness standard
governing both an actor's beliefs and his or her actions is clarified by rules of
interpretation that add sufficient specificity to the meaning of section
106(1) to give fair notice of the standards to which parents will be subject
should they elect to use physical means to control their children.  
	[¶34]  As already noted, 17-A M.R.S.A. § 101(3) effectively modifies
the reasonableness standard to impose a higher and more specific
recklessness requirement in cases where the underlying charge is assault. 
Thus, the issue becomes not whether the parent's action in physically
controlling the child was unreasonable, but instead whether that parent's
action or belief was grossly deviant from what a reasonable and prudent
parent would do or believe in the same situation.  See 17-A M.R.S.A. § 35(3). 
"Gross deviation" is a considerable narrowing of the reasonableness
standard and one that has been approved as preserving a recklessness or
criminal negligence standard for conviction against a due process challenge. 
See State v. Carisio, 552 A.2d 23, 25 (Me. 1988).
	[¶35]  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.  In Ingraham v. Wright,
430 U.S. 651 (1977), the United States Supreme Court recognized a school
official's civil privilege to physically discipline a child with "licks" or blows
with a paddle which resulted in "no apparent physical injury to the
student."  Id. at 657.  The Supreme Court must have recognized that any
time a child is hit with a physical object, or a hand, with the intent of
disciplining the child, the hit is intended to cause some transient pain, and
it may leave a red mark or a bruise which, depending on the child's skin
sensitivity, may last a few hours or a few days.  But it may be that such
contacts that cause only transient pain and temporary marks, in the parent-
child or school disciplinary context, were not considered by the Court to
constitute "physical injury." 
	[¶36]  Cases from other states that have addressed close questions of
sufficiency of the evidence in parental justification-assault cases lend
support to a distinction between those acts that cause only transient pain
and temporary marks or bruises, which the parental justification protects,
and those acts that cause long-term pain, permanent marks, or
disfigurement upon which criminal liability is assessed.  
	[¶37]  In State v. Kaimimoku, 841 P.2d 1076 (Haw. App. 1992),
evidence indicated that a 17-year-old girl, in a heated argument with her
father, was held, slapped in the face and punched on her shoulders with a
closed fist.  A day later a hand print, other bruising, and a scratch mark was
observed on her body.  The Hawaii Appeals Court overturned the trial court's
family abuse conviction, ruling as a matter of law that the evidence was
insufficient to support a conviction under a justification statute very similar
to the Model Penal Code.  The appeals court found support for its ruling in a
Hawaii Supreme Court case, State v. Deleon, 813 P.2d 1382 (Haw. 1991),
which found insufficient evidence to support a conviction where a
14-year-old girl had been hit six to ten times with a belt causing pain and
bruises that lasted about a week.  See id.  at 1383.  See also State v. Stocker,
976 P.2d 399, 409-10 (Haw. 1999) (evidence of slapping insufficient to
overcome parental discipline defense and support conviction beyond a
reasonable doubt).
	[¶38]  In State v. Ivey, 648 N.E.2d 519 (Ohio App. 1994), a
ten-year-old boy was disciplined for not reporting a school detention by
being whipped on the buttocks and legs with a belt, leaving bruises and
welts observable the next day but causing no permanent damage.  The Ohio
Appeals Court, Eighth District, ruled that this evidence was insufficient to
support a child endangerment conviction in the face of a parental
justification defense because "the harm that resulted was temporary and
slight, and did not require medical attention."  Id. at 526.  Addressing the
governing law and standards of review, the court stated:
Parents are responsible for the upbringing, education and
discipline of their children, as parents have a fundamental
liberty interest in the care, custody and management of a child. 
The state should intervene only when a serious risk of physical
or mental harm to the child is clear from the evidence.  Parents
have to be given reasonable latitude to impose discipline as the
best interests of the child dictate.  Some children need more
discipline than others.  Some respond without ever being
struck-- a sharp word suffices.  It is the parent who in the first
instance is the best judge of what works with each child.  
Id. (citation omitted).{11}

	[¶39]  Two cases from the Fifth District Court of Appeal of Florida
illustrate distinctions that may become important at the boundary between
permissible parental control and violations of criminal law.  See Lowery v.
State, 641 So. 2d 489 (Fla. Dist. Ct. App. 1994); Moakley v. State, 547 So. 2d
1246 (Fla. Dist. Ct. App. 1989).  Both addressed a child abuse statute
imposing criminal liability on one who "maliciously punishes a child."  Fla.
Stat. Ann. § 827.03(1)(c) (1987).  Moakley involved a conviction for striking
an eight-year-old girl on the buttocks and hip with a leather belt, leaving
bruise marks.  See Moakley, 547 So. 2d at 1246.  The court ruled that the
evidence was insufficient to support the conviction, noting there was no
evidence of great bodily harm, permanent disability, or permanent
disfigurement.  See id.  at 1247.  Lowery involved a conviction for striking a
seven-year-old boy many times with an electric cord, leaving bruises,
lesions, and scabs.  See Lowery, 641 So. 2d at 489.  The court affirmed the
conviction, distinguishing Moakley on the basis that the evidence in Lowery
indicated that the defendant's actions had drawn blood and left some
permanent marks or "disfigurement."  See id. at 490.  
	[¶40]  Another case highlighting important distinctions is State v.
Miller, 746 So. 2d 118 (La. App. 1999).  There both the trial court and the
Louisiana Third Circuit, affirming a battery conviction, determined that
defendant's slapping a child would not have been enough to support
conviction, but defendant's subsequent acts of pinning the child down and
choking her placed his actions beyond the "reasonable discipline"
justification.  Id. at 120.  Notably, except for cases involving choking, this
Court's review of the case law has not identified any case where a parent was
successfully prosecuted for assault, where the parent's only physical contact
with a child involved grabbing the child firmly and briefly.
	[¶41]  A recent law review article discussing parents' use of physical
discipline, after surveying the law of the 50 states, argues that parental
conduct that results in "physical injury" to a child should not be subject to a
justification such as is provided in section 106(1).  However, that article also
indicates that "physical injury" as the term was addressed: "does not
include transient red marks or temporary pain."  Kandice K. Johnson, Crime
or Punishment: The Parental Corporal Punishment Defense-Reasonable and
Necessary or Excused Abuse?,  1998 U. Ill. L. Rev. 413, 472.  
	[¶42]  A Washington state law addressing similar situations provides a 
list of actions by parents controlling their children that are considered
unreasonable and subject to criminal liability.  Wash. Rev. Code Ann.
§ 9A.16.100 (West 1999).{12}  By this listing, Washington avoids a due process
challenge to the reasonableness standard.  Notably, the Washington law
excludes from acts that trigger criminal liability acts that cause bodily harm
no greater than "transient pain or minor temporary marks."  Id.
	[¶43]  Under the Washington statute, assault convictions involving two
children were affirmed where the evidence showed that a PVC pipe was
used to hit one child as many as 35 times and another child 10 to 12 times
and one parent-defendant conceded that the discipline was not reasonable
and was excessive.  See State v. Gwerder, unpublished decision, 1998 WL
251884 (Wash. App. Div. 1, 1998).  This concession was held to vitiate the
statute's "reasonableness" defense.  Id. at *2.
	[¶44]  This analysis of statutes, the common law, precedent, a
scholarly survey of the law of the 50 states, and the efforts of the drafters of
the Model Penal Code and the Restatement of Torts leads to the following
conclusions:
	1.  All American jurisdictions allow parents to use at least
moderate or reasonable physical force when they reasonably
believe that such force is necessary to control their children;
	2.  To trigger criminal liability:
		(a) the physical harm caused by the parent's use of
	force must be greater than transient pain and minor,
	temporary marks or bruises; and
		(b) the parent's belief that such physical contact is
	necessary must be more than unreasonable; it must be a
	gross deviation from what a reasonable and prudent
	parent would believe in the same situation; and
	3.  Once a parental control justification is placed in issue,
the triggers for criminal liability must be proven by the State,
beyond a reasonable doubt.
	[¶45]  Section 106(1) must be interpreted with this background.  The
combination of (1) Maine's own interaction of statutory definitions within
the Criminal Code; and (2) accepted interpretations of the type of force that
a parent may use against a child without being viewed as criminal, gives
sufficient specificity to the interplay of the assault statute and the parental
control justification to articulate the prohibited criminal conduct.  To
present sufficient evidence to allow a factfinder to determine that the State
has disproven the section 106(1) justification, the State must prove beyond
a reasonable doubt that:  (1) the degree of physical force that the parent
used caused physical injury greater than transient pain and/or temporary
red marks or bruises; and (2) the parent's belief that such physical force was
necessary to control the child's misconduct was grossly deviant from what a
reasonable and prudent parent would believe necessary in the same
situation.
	[¶46]  The evidence in this record must be examined against the
above criteria.  When reviewing the sufficiency of the evidence to support a
conviction, we review it in the light most favorable to the State to determine
if the factfinder rationally could find beyond a reasonable doubt every
element of the offense charged.  See State v. Brown, 2000 ME 25, ¶ 7, ---
A.2d ---; State v. Michaud, 1998 ME 251, ¶ 11, 724 A.2d 1222, 1228; State
v. John W., 418 A.2d 1097, 1103 (Me. 1980).  We will reverse a conviction
only when no trier of fact rationally could find proof of guilt beyond a
reasonable doubt.  See Brown, 2000 ME 25, --- A.2d at ---; State v. Durgan,
467 A.2d 165, 166 (Me. 1983).  For this determination, it is appropriate to
accept the State's characterization of the evidence.  We also recognize and
accept that the District Court could find, as it did, that the technical
elements of assault were proven.  The concern here is not with those
findings but with the application of the parental control justification.
	[¶47]  In the first assault incident in which the boy was "talking too
much," the State characterizes Wilder as having "grabbed him on the
shoulder and told him to shut up" and having squeezed the boy "hard
enough to hurt him."  If such acts, as characterized by the State, and 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. 
But while neither the State nor this Court may necessarily condone or agree
with Wilder's approach to control of his son, we can say, as a matter of law,
that (1) the physical harm caused was not, beyond a reasonable doubt,
greater than transient pain and temporary marks; and (2) grabbing his son
hard to get his attention and stop him from talking too much was not,
beyond a reasonable doubt, an action grossly deviant from what a reasonable
and prudent parent would believe necessary in the same situation.
	[¶48]  The same may be said of the second incident involving grabbing
the shoulder in the same spot and for the same reason.  In neither case was
the child squeezed firmly enough to make him cry, and in both cases, father
and son apparently continued the games they had been playing before the
incidents.   
	[¶49]  The third incident involving "exaggerating" resulted in Wilder
grabbing his son on the mouth, squeezing firmly enough to leave bruises, and
saying "shut up."  Again, while this is not an action to control or reprimand
a child that the State or this Court might take or condone, we can say as a
matter of law that the evidence is insufficient to support a finding, beyond a
reasonable doubt, that (1) Wilder's beliefs that he needed to use force to
control his son were grossly deviant from what a reasonable and prudent
parent would believe necessary in the same situation; and (2) the force used
caused harm greater than transient pain and temporary marks.
	[¶50]  At oral argument, the State asserted that even in the face of
17­p;A M.R.S.A. § 106(1), any physical action by a parent to control a child
which causes the child pain and which is brought to the State's attention,
may subject the parent to criminal prosecution for assault, depending upon
how the State exercises its prosecutorial discretion.  This standard gives the
State considerable latitude to inject itself, supporting one side or the other,
into difficult and often ambiguous family situations.  The State's position
ignores the limitation on the State's discretion suggested in the Model
Penal Code comments that even under a statute like section 106(1), "it
would be extraordinary for a parent using moderate force for a permissible
purpose to be prosecuted because of misjudgment."  Model Penal Code
§ 3.08 cmt. (1979).
	[¶51]  Certainly, the State should and does frequently inject itself into
family situations to protect children from assaults and other abuse.  See, e.g.,
In re Kafia M., 1999 ME 195, 742 A.2d 919.  But the standards for such
involvement must respect the standards specified in section 106(1).  The
law puts a heavy burden on the State to inject itself into parent-child control
situations by bringing criminal charges only when the actions of the parent
cause more than transient pain or temporary marks and the beliefs of the
parent that the parent must act to cause the child pain are grossly deviant
from what a reasonable and prudent parent would believe necessary in the
same situation.  While there are individuals who legitimately and firmly
believe that any discipline which causes a child physical pain is
inappropriate,{13} any change in the parental control justification presently
set by the Maine Criminal Code is an issue of policy properly subject to
action by the Legislature, not the courts. 
	[¶52]  Maine's present Criminal Code sets a standard, noted in the
1975 Commentary to the Code, that proscribes physical discipline of a child
only for "extreme punishment" or an action which "cruelly treats" a child. 
Because the parental control justification was generated by the evidence, the
limited evidence in this record is insufficient for any rational factfinder to
find the parental control justification disproven beyond a reasonable doubt.
	The entry is:
Judgment vacated.  Remanded to the Superior
Court for remand to the District Court for
entry of a judgment of acquittal on each charge
of assault.


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