STATE of South Dakota, Plaintiff and Appellee, v. Burton EAGLE HAWK (# 15361) and Mary Ann Spirit Track (# 15362), Defendants and Appellants.
Nos. 15361, 15362.
Supreme Court of South Dakota.
Decided Aug. 5, 1987.
At or about the time of this writing, there are several decisions in this Court involving a review, by this Court, of the standard of review on findings of fact and conclusions of law entered by the lower courts of this state. In an effort to comport my vote with previous writings that I have currently tendered by way of special writings to other cases in conference in this Court, at this time, I wish to refer to my special writings in Guardianship of Viereck, 411 N.W.2d 102, 107 (S.D.1987) (Henderson, J., specially concurring), and Lee v. Department of Health, 411 N.W.2d 108, 112 (S.D.1987) (Henderson, J., concurring in result).
Again, I wish to point out that the two United States Supreme Court decisions, cited in my earlier decisions, do not involve appeals from administrative agencies.
Joseph E. Ellingson of Tobin Law Office, P.C., Winner, for defendant and appellant Eagle Hawk.
Richard F. Rahn of Grieves & Rahn, Winner, for defendant and appellant Spirit Track.
HENDERSON, Justice.
ACTION/ISSUES
For purposes of clarity and convenience, we shall refer to defendants-appellants Mary Ann Spirit Track and Burton Eagle Hawk as appellants or parents. Both were found guilty of Abuse of or Cruelty to a Minor concerning their three children, Lionel, Malinda, and Burton Spirit Track. They contend the convictions should be reversed and separately raise three common issues in their appeals:
- Both appellants were entitled to judgments of acquittal;
SDCL 26-10-1 is vague and indefinite; and- trial court improperly instructed the jury and refused legitimate proposed instructions. Also,
- Mother argues that evidence of other bad acts was improperly admitted.
We affirm.
FACTS
Appellants are natural parents of Burton Spirit Track (born November 16, 1983), Malinda Spirit Track (born December 17, 1984), and Lionel Spirit Track (born November 20, 1985). Father was twenty-three years old and Mother was eighteen years old when the incident charged occurred.
On January 23, 1986, Winner police were alerted that one of the Spirit Track children needed immediate medical attention. A police officer and a social worker proceeded to the Spirit Track residence. Upon their arrival, it was observed that three children required medical care. Transportation was provided via police cruiser to Medical Arts Clinic.
Examining physician Webb noted that all three children were extremely odoriferous and dirty. Burton Spirit Track had oozing and crusting sores covering his entire scalp causing matting of his hair. Lice and unidentified larger white insects crawled through his hair. Open sores were observed on his left arm, right elbow, and right knee. Evulsion of his right thumbnail and right big toenail had occurred.
Malinda Spirit Track had a fever. Lice-infected sores covered the entirety of her scalp resulting in matting of her hair. Her left ear canal was purulent and behind that ear were large oozing sores causing separation of ear and scalp. Pus was draining from the left eye and her left nostril was covered with numerous open sores. A sore was also evident on her upper left arm. Lastly, an examination of her left hand revealed evulsion of the third finger‘s nail.
Lionel Spirit Track was fussy and crying throughout his examination. He had a severe diaper rash accompanied by many open sores and lesions. Several festering sores were noted on his left leg. Dirt completely filled external parts of both ears and his hair contained lice eggs. Pus was draining from both eyes.1
Dr. Webb testified that the condition of all three children required their hospitalization. She further noted that the severity of sores on Malinda and Burton could have eventually evolved into life threatening infections if left unattended. Physician
Appellants were each charged with violation of
Each parent filed a Notice of Appeal. These appeals were consolidated for purposes of review by this Court.
DECISION
I.
Appellants, in a facially persuasive manner, assert that their motions for acquittal should have been granted as State failed to demonstrate that they abused, exposed, tortured, tormented, or cruelly punished their children in violation of
Parents’ Argument
Prior to its repeal and re-enactment in 1977,
It shall be a Class 1 misdemeanor for any person intentionally, negligently, or unnecessarily to expose, torture, torment, cruelly punish, or intentionally neglect any child under eighteen years of age or deprive such child of necessary food, clothing, shelter, or medical attendance.
1977 S.D. Sess. Laws ch. 189, § 96 (emphasis added). The emphasized portion, inter alia, above was amended out in 1977. Also in 1977,
It is therefore reasoned by parents that inclusion of severe neglect by the trial court within the ambit of
Parents also argue that since no statutory definition exists for “abuse” and “torment” (the acts alleged in Indictment), their ordinary and plain meaning should be used. They urge that to include severe neglect within the meaning of the above two words would be to judicially expand the language and reach of a statute which is something we have previously refused to do. See Petition of Famous Brands, Inc., 347 N.W.2d 882 (S.D.1984) (and authorities
State‘s Argument
The trial court held that “abuse” and “torment” “are sufficiently broad to include the class of evidence that has been introduced by the State” in that those words “include inaction as well as physical, overt acts of striking, beating or other types of physically caused trauma.” State, in its appellate advocacy, makes reference to a definition appearing in
It is also argued that the ordinary meanings of “abuse” and “torment” lend themselves equally to consequences of both active and inactive behavior.5 See State v. Williquette, 129 Wis.2d 239, 385 N.W.2d 145 (1986); Jakubczak v. State, 425 So.2d 187 (Fla.App.1983); Gullatt v. State, 409 So.2d 466 (Ala.Cr.App.1981).6 In State v. Zobel, 81 S.D. 260, 274, 134 N.W.2d 101, 109 (1965), this Court stated “each spouse has an equal duty to support and protect [their children] and cannot stand passively by and refuse to help them when it is reasonably within their power to do so.” See 1 W. LaFave & A. Scott, Substantive Criminal Law § 3.3, at 294 (1986) (where the authors note
that criminal battery may be committed by an omission to act (if there exists a duty to act), as well as by an affirmative act. If a parent, knowing that injury is substantially certain to result in his infant child unless he acts to prevent it, fails to act, and the infant is injured but not killed as a result, the parent would doubtless be guilty of battery. The same result should follow if his omission amounted to recklessness, though he did not intend any injury to the child.) (Footnotes omitted.)
See also 1 P. Robinson, Criminal Law Defenses § 86(c), at 444 (1984) (where this expert observes: “Liability for an omission can be imposed for any offense on the theory that the failure to perform conduct that one has a duty and the capacity to perform, is an adequate substitute for the conduct required by an offense definition.“) (Footnote omitted.)
State maintains that parents simply place too much weight upon the 1977 amendments to
II.
Parents next argue that if we find
Initially we note that “[a] statute will be held void for vagueness if the forbidden conduct is so poorly defined ‘that [persons] of common intelligence must necessarily guess at its meaning and differ as to its application....‘” State v. Blakey, 399 N.W.2d 317, 318 (S.D.1987) (quoting Connally v. General Constr. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322, 328 (1926)). Accord, State v. Bad Heart Bull, 257 N.W.2d 715, 720 (S.D.1977). The proscription against vagueness emanates from the Due Process Clause‘s mandate that people be given fair notice of prohibited conduct. See Connally, 269 U.S. at 391; 21 Am.Jur.2d Criminal Law § 17 (1981). However, we have held that “[c]ertainly it is not necessary to cover all possible parental mistreatment in the statute.” In re D.T., 89 S.D. 590, 596, 237 N.W.2d 166, 169 (1975). We hold, by way of certainty in the humanities, that it is axiomatic that persons of common intelligence need not guess that severe or extreme neglect can evolve into abuse. Accordingly, parents’ void for vagueness argument fails.
III.
Parents also advocate that the lower court erred when it instructed the jury in a manner not including the entire language of
Parents claim that
Additionally, parents note that the trial court instructed the jury pertaining to definitions of “abuse” and “torment.” Parents advocate these definitions were improper and the trial court should have used their proposed instructions. We find these arguments unpersuasive.
The trial court structured its jury instructions to coordinate with charges made in the Indictment. “Abuse” and “torment” were charged in the Indictment and the trial judge indicated that other words of
This Court has recently held that when giving jury instructions, it is “not necessary” that the entire statute be recited.
IV.
Mother alone advocates that it was reversible trial court error to admit evidence, elicited from her through cross-examination, regarding her prior acts of (1) overdosing on drugs, and (2) attempted fraudulent attainment of welfare benefits. We are not persuaded by this argument.
Initially, we note that admittance of evidence should be prefaced upon relevance, and a probative value that exceeds prejudicial effect. See State v. Grooms, 399 N.W.2d 358, 361 (S.D.1987); State v. Means, 363 N.W.2d 565, 568 (S.D.1985);
Mother‘s admission that she attempted to fraudulently obtain welfare benefits is “probative of [her] truthfulness or untruthfulness” as intended by
It has been pointed out that evidence elicited upon cross-examination, unlike similar evidence which is inadmissible in the prosecutor‘s own case, “is not for the purpose of showing that [defendant] was the kind of person who would be willing to commit the offense charged, but solely for the purpose of diagnosing [defendant‘s] conscience and thereby enabling the jury to determine the extent of [defendant‘s] veracity and credibility as a witness.“)
(Quoting People v. Richardson, 222 N.Y. 103, 107, 118 N.E. 514, 516 (1917)). Accordingly, as per
However, we are firmly convinced that the circuit court erred in admitting evidence, elicited through cross-examination of Mother, concerning her drug overdose while pregnant. This evidence does not parallel any of the exceptions identified by
We also note that the circuit court failed to balance the probative value of this evidence against its prejudicial effect. If such a weighing was accomplished, we are certain the circuit court judge would have disallowed this evidence as its probative value is substantially overcome by its prejudicial effect. See
Despite our ruling that this evidence was improperly admitted, we do not reverse the circuit court, as its error was harmless and not prejudicial to Mother‘s substantial rights. “Whether error is prejudicial must be determined on the basis of the facts in any given case.” State v. Remacle, 386 N.W.2d 38, 40 (S.D.1986) (quoting State v. Waller, 338 N.W.2d 288, 291 (S.D.1983)). Prejudicial error is that which, in all probability, has produced some effect upon the final result and to have affected the rights of the party assigning that error. State v. Bittner, 359 N.W.2d at 125; State v. Dace, 333 N.W.2d 812, 816 (S.D.1983). In this case, the evidence of Mother‘s abuse and torment of her children is absolutely overwhelming. Open sores on their bodies, pus draining from eyes, purulent ear canals, scalps marked by sores and contaminated with lice, evulsion of fingernails and a toenail were conditions which required hospitalization. Therefore, we are satisfied the evidence was of such a damning nature that a single incorrect evidentiary ruling did not produce some effect upon the final result, or was so detrimental to Mother‘s right to a fair trial as to mandate reversal. See State v. Chief Eagle, 377 N.W.2d 141, 144 (S.D.1985); High Elk v. State, 344 N.W.2d 497, 501-02 (S.D.1984).
Affirmed.
MILLER, J., concurs.
WUEST, C.J., concurs specially.
MORGAN and SABERS, JJ., dissent.
WUEST, Chief Justice (specially concurring).
I concur, except as to the definition of prejudicial error. “[P]rejudicial error occurs when the appellant establishes that under the evidence the jury might and probably would have returned a different verdict if the alleged error had not occurred.” State v. Davis, 401 N.W.2d 721, 725 (S.D.1987).
SABERS, Justice (dissenting).
I dissent.
1. Improper Indictment
Burton Eagle Hawk and Mary Ann Spirit Track were improperly indicted for abuse of a minor. The indictment provided:
That between July 1, 1985 and January 23, 1986, ... [defendants] ... did individually and conjointly, abuse and torment Lionel ... Melinda ... and Burton ... minors, in a manner which did not constitute aggravated assault, ... [in] ... [t]hat they failed to furnish proper parental care and medical assistance resulting in the minors suffering great pain, physical and mental, from diseases and injuries, in violation of
SDCL 26-10-1 [.]
The Tripp County state‘s attorney improperly equated abuse with neglect. This error resulted in the improper grand jury indictment. This error further resulted in improper jury instructions equating abuse with neglect and in the majority opinion which affirms that error.
In my view the majority opinion is not able to see the difference between abuse and neglect because of the “damning nature” of the results of the neglect. There
The state‘s attorney improperly charged the defendants with a felony on misdemeanor proof. This is clearly improper and should be reversed.
As stated in the majority opinion, in 1977,
It shall be a Class 1 misdemeanor for any person intentionally, negligently, or unnecessarily to expose, torture, torment, cruelly punish, or intentionally neglect any child under eighteen years of age or deprive such child of necessary food, clothing, shelter, or medical attendance.
If this statute were still in existence today the defendants could have been convicted of a violation which was a Class 1 misdemeanor. However, in 1977,
Any person who abuses, exposes, tortures, torments or cruelly punishes a minor in a manner which does not constitute aggravated assault, is guilty of a Class 4 felony.
In addition, the misdemeanor statute,
A parent of a minor child who intentionally omits without lawful excuse to furnish necessary food, clothing, shelter, medical attendance or other remedial care or other means of support for his child is guilty of a Class 1 misdemeanor.
A fair reading of these statutes makes it clear that under present South Dakota law neglect, even severe neglect, does not constitute abuse or torment.
Even more important, in this case the indictment charged the defendants with a Class 4 felony based on language taken from the Class 1 misdemeanor statute,
It is obvious that the South Dakota Legislature knew what it was doing when it provided intentional abuse, torment, etc. to be a felony and intentional omissions to furnish food, clothing, medical attention a misdemeanor. Even if that were not the case, there is no showing here that the defendants ever intentionally did anything. There is no showing that defendants were awake, conscious, or sober enough to form any intent. An omission or neglect can be the result of alcohol problems, as in this case, rather than the result of a criminal act.
2. Improper Focus and Jury Instructions
The majority opinion appears to adopt the State‘s argument that at some factually determinable point parental neglect must become cruelty or abuse of a minor, and submits that it was obvious to the majority (and to the jury) that the parents’ treatment of the children was cruel, inhumane, conducive to injury, and recurringly painful. I do not think the majority opinion can blame this case on the jury when the state‘s attorney improperly indicted the defendants and the trial court improperly instructed them. It is not enough to say that the parents’ conduct was abusive under the standards developed by the trial court, especially when the standards developed by the trial court were clearly in error.
The following language of the majority opinion pin points the fatal defect in their reasoning.
What, pray tell, we ask, is the difference to the child be he afflicted by acts of commission or omission if, in the end, his body is racked with distress, agony, and torment? We perceive none.
The state‘s attorney, the trial court, and now the majority opinion all have the wrong focus. Their focus was on the body racked with distress, agony, and torment. In determining a violation of a criminal statute, such as
The extent to which the majority opinion strains to reach its preconceived result affirming the trial court is also evident in its selective use of the dictionary definitions for abuse, torment, cruel, and cruelty. In the first place, neither cruel nor cruelty are involved because they were not used in the indictment. In defining “torment” the majority opinion leaves out the first definition which is “the infliction of torture (as by rack or wheel).” A fair reading of the statutes and the definitions of “abuse” and “torment” substantially support the dissent and not the majority opinion. At any rate, by no stretch of the imagination, or strained interpretation of any dictionary definitions did the defendants in this case inflict torture (as by rack or wheel). There is no showing that the defendants intended anything, much less torture.
3. Prior Bad Acts
In its effort to sustain the convictions, the majority opinion impliedly condones the State‘s use, through cross-examination, of prior bad acts of (1) overdosing on drugs while pregnant, and (2) attempted fraudulent attainment of welfare benefits. The majority opinion gives lip service to
The majority opinion acknowledges that it is firmly convinced that the circuit court erred in admitting evidence, solicited through cross-examination of mother, concerning her drug overdose while pregnant. After noting that the circuit court failed to balance the probative value of this evidence against its prejudicial effect, the majority notes their “certainty that the circuit court judge would have disallowed this evidence as its probative value is substantially overcome by its prejudicial effect.”
The majority opinion then says: “Despite our ruling that this evidence was improperly admitted, we do not reverse the circuit court, as its error was harmless and not prejudicial to Mother‘s substantial rights.” The majority opinion is attempting to overrule State v. Dokken, 385 N.W.2d 493 (S.D.1986) and State v. Rufener, 392 N.W.2d 424 (S.D.1986) without even mentioning the names of the cases.
4. Conclusion
The children were neglected, even severely neglected. The neglect resulted in serious illnesses and diseases. The children were removed from their surroundings and found to be dependent and neglected, which was proper. The parental rights of the defendants to the children were terminated, which was also proper. The defendants were indicted, convicted, and sentenced for felonies instead of misdemeanors, which was clearly improper. We should reverse and remand for retrial on proper misdemeanor charges.
I am authorized to state that MORGAN, J., joins in this dissent.