Graham v. StateGraham v. State
- Reporters:
- ,
- Before:
- Glaze
Appellant Edith Graham was charged with the crime of permitting the abuse of a child. Her then-husband, Nick Graham, was charged in the same felony information with second-degree battery. See
On appeal, Edith first argues that the trial court erred in denying her motion for directed verdict. As noted above, Edith was charged with violating
(a)(1) A person commits the offense of permitting abuse of a minor if, being a parent,... he or she recklessly fails to take action to prevent the abuse of a minor.
(2) It is a defense to a prosecution for the offense of permitting abuse of a minor if the parent... takes immediate steps to end the abuse of the minor, including prompt notification of medical or law enforcement authorities, upon first knowing or having good reason to know that abuse has occurred.
To convict Edith of permitting child abuse, the State was required to prove that she was a parent; at a pre-trial hearing, Edith conceded that she was Anthony’s mother. The State also had to prove that the child was being abused. To this end, the State introduced photographs of the bruises and bite marks on Anthony. In addition, Edith called Nick to testify during her case-in-chief, and he admitted that he had hurt Anthony. The final element that the State had to prove was that Edith “recklessly fail[ed] to take action to prevent the abuse[.]”
Marshall testified that she had known Edith for about ten or eleven years, four or five of which Edith and Nick had been married. Marshall stated that she became aware that Anthony was suffering some abuse when the boy was about a year old. She first observed bruises on the boy, but thought that it was “fairly common” for children to have bruises; however, when she began to see bite marks on Anthony, she started asking questions. Marshall said that the Grahams would explain the marks by saying that one of their other children had bitten Anthony.
Sometime later, Marshall testified that she went to her brother’s house and asked Edith if Nick was abusing Anthony, and Edith replied that she was aware of it. When Marshall asked why Edith stayed with Nick, Edith said that she loved Nick and that she needed a babysitter. After that conversation, Marshall decided to take action herself. She began looking more closely at the baby when she was at the Grahams’ house, and one day, when she went over to do laundry, she saw bruises all over Anthony’s legs and arms. When Marshall took off his clothes, Anthony had bruises all over his back that looked to be in the shape of fingerprints or handprints. Marshall confronted Nick, who admitted that he had been hurting the baby. Marshall left, taking the baby with her.
The next morning, Marshall left the baby with her mother and went to the Grahams’ house to talk to them about the situation. Edith said that she was going to go to Marshall’s house to pick up Anthony, but Marshall was able to get to the house before Edith. Marshall then went with Anthony to the police station and reported the abuse. After that, Marshall took the baby to Arkansas Children’s Hospital in Little Rock.
Edith urges that Marshall’s testimony is insufficient to prove that she never took any steps to attempt to end the abuse. Edith asserts that Marshall could not have definitively known if Edith failed to take
Only one other Arkansas case involved a question of the sufficiency of the evidence under this statute. In Reams v. State, 45 Ark. App. 7, 870 S.W.2d 404 (1994), the court of appeals held that there was sufficient evidence to support a conviction where the defendant, Donna Reams, testified that she saw the child’s father shake the child on three different occasions, on the last of which, he “shook the baby so hard it scared her.” Reams, 45 Ark. App. at 12. Reams also testified that she observed bruises and burns on the child, but did not ask how the injuries occurred. She admitted seeing bruises on the baby’s palms, but thought the baby had “squeezed himself.” Id. She also noticed red marks on the baby’s arms on Tuesday, prior to taking him to the hospital on Sunday, but did nothing about it. Id. On these facts, the court of appeals affirmed Reams’s conviction for permitting child abuse.
The evidence in this case is likewise sufficient to support the verdict.
A person acts recklessly with respect to attendant circumstances or a result of his conduct when he consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of a nature and degree that disregard thereof constitutes a gross deviation from the standard of care that a reasonable person would observe in the actor’s situationf.]
The evidence in this case showed that Marshall confronted Edith with concerns that Anthony was being abused, yet after that confrontation, Marshall continued to see signs that the abuse was ongoing. The trial court could reasonably infer, from the fact that the abuse continued to occur after Edith acknowledged her awareness of it, that Edith consciously disregarded a substantial risk that the abuse existed and would continue to occur, and that she failed to take action to prevent the abuse. The trial court clearly found Marshall’s account of events to be credible, as was the court’s prerogative. See, e.g., Shields v. State, 357 Ark. 283, 166 S.W.3d 28 (2004).
In her second point on appeal, Edith argues that the statute under which she was convicted is unconstitutionally void for vagueness; she asserts that, in prohibiting the “failure to take action,” the statute gives no direction as to what “action” is required in order to meet its dictates and avoid criminal culpability. She asserts that, in order for the “fails to take action to prevent” statute to pass constitutional muster, it must give, fair warning as to what action the defendant is required to take in order to avoid criminal liability. Here, Edith claims, the “permitting child abuse” statute does not give fair warning as to what actions one can take in order to
As a general rule, the constitutionality of a statutory provision being attacked as void for vagueness is determined by the statute’s applicability to the facts at issue. Reinert v. State, 348 Ark. 1, 4-5, 71 S.W.3d 52, 54 (2002). Further, when challenging the constitutionality of a statute on grounds of vagueness, the individual challenging the statute must be one of the “entrapped innocent,” who has not received fair warning; if, by his action, that individual clearly falls within the conduct proscribed by the statute, he cannot be heard to complain. Id. at 5, 71 S.W.3d at 54. That a statutory provision may be of questionable applicability in speculative situations is usually immaterial if the challenged provision applies to the conduct of the defendant in the case at issue. Id. (citing United States v. Petrillo, 332 U.S. 1 (1947); Holt v. City of Maumelle, 307 Ark. 115, 817 S.W.2d 208 (1991)).
We cannot reach the merits of Edith’s vagueness argument, because she was not an entrapped innocent and, thus, lacks standing to argue that
Affirmed.
Notes
See Lambert v. California, 355 U.S. 225 (1957) (holding that, a person could not be convicted consistently with due process for failure to register as a felon if the person did not know of the duty to register and there was no proof of the probability of such knowledge); see also Dailey v. State, 65 P.3d 891 (Alaska Ct.App. 2001); 1 Wayne LaFave, Substantive Criminal Law § 6.2(b), at 443 (2d ed. 2003) (“Though one might otherwise be under a duty to act, so that omission to do so would ordinarily render him criminally liable, the prevailing view is that he may not be held liable if he does not know the facts indicating a duty to act.”). Thus, the defendant’s awareness of the duty is an element that must be established in order to find a criminal breach of that duty.