Interest of A.W.
2012 ND 153
| N.D. | 2012Background
- Pavlicek appeals after a jury convicted her of abuse or neglect of a child for injuring L.B., a child in Pavlicek's care.
- Pavlicek lived with her boyfriend, their child, Pavlicek's child from a prior relationship, and L.B., the boyfriend's child from a prior relationship.
- In October 2010, a school teacher noted a bruise on L.B.’s face and multiple bruises on L.B.’s back, prompting social services involvement.
- Text messages and testimony showed Pavlicek expressed hostility toward L.B. and admitted punching L.B. in the back; a nurse and a detective corroborated injuries and admissions.
- A jury convicted Pavlicek on the back-injury count but acquitted on the facial-injury count; Pavlicek argued the evidence was insufficient and the verdicts inconsistent.
- Pavlicek argued for a jury instruction limiting discipline to only force that creates a substantial risk of serious harm, but she did not submit written proposed instructions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was the back-injury conviction supported by sufficient evidence? | Pavlicek contends no substantial evidence of back injury supports guilt. | The State contends competent evidence showed back injuries and admissions of hitting. | Yes; substantial evidence supports the back-injury conviction. |
| Are the facial and back-injury verdicts legally inconsistent? | Two verdicts with similar elements should be inconsistent if one is convicted and the other acquitted. | A lack of conviction on one count does not negate the other when substantial evidence supports the remaining conviction. | No legal inconsistency; substantial evidence supported the back-injury conviction. |
| Did the trial court err in not giving Pavlicek's preferred jury instruction on parental discipline? | The instruction should reflect §12.1-05-05(1) narrowing the use of force. | The requested instruction was incorrect as a matter of law and written submissions were required. | No; the court properly allowed a reasonableness determination and the error in the requested instruction was not reversible. |
Key Cases Cited
- State v. Doll, 2012 ND 32 (ND 2012) (standard for reviewing sufficiency of evidence)
- Jahner, 2003 ND 36 (ND 2003) (verdicts not inconsistent if substantial evidence supports conviction on one count)
- Simons v. State, 2011 ND 190 (ND 2011) (use of force in parental discipline not exclusive; totality of circumstances)
- Rittenour v. Gibson, 2003 ND 14 (ND 2003) (jury instructions must correctly inform law; consider evidence as a whole)