UNITED STATES, Appellee, v. Jose M. RIVERA, Sergeant, U.S. Army, Appellant.
No. 00-0630
U.S. Court of Appeals for the Armed Forces.
Argued Feb. 7, 2001. Decided May 2, 2001.
54 M.J. 489
Crim.App. No. 9701863.
For Appellant: Captain Sean S. Park (argued); Colonel Adele H. Odegard, Lieutenant Colonel David A. Mayfield, and Major Jonathan F. Potter (on brief).
For Appellee: Captain William J. Nelson (argued); Colonel David L. Hayden, Lieutenant Colonel Edith M. Rob, and Captain Daniel G. Brookhart (on brief).
Judge BAKER delivered the opinion of the Court.
On August 7 and November 20-21, 1997, appellant was tried by a general court-martial at Fort Bragg, North Carolina. Contrary to his pleas, appellant was found guilty, by a military judge sitting alone, of two specifications of assault consummated by a battery, in violation of
On June 16, 2000, the Court of Criminal Appeals affirmed the findings of guilty and the sentence. We granted review on November 8, 2000, of the following issues:
- WHETHER THE EVIDENCE IS LEGALLY SUFFICIENT TO SUPPORT THE FINDING OF GUILTY TO SPECIFICATION 1 OF THE CHARGE (ASSAULT CONSUMMATED BY A BATTERY ON A CHILD UNDER THE AGE OF SIXTEEN) WHEN THE GOVERNMENT FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT THE AFFIRMATIVE DEFENSE OF PARENTAL DISCIPLINE DID NOT RENDER APPELLANT‘S ACTION LAWFUL.
- WHETHER ONE PUNCH IN THE STOMACH TO A FOURTEEN-YEAR-OLD MALE, WITHOUT ANY EVIDENCE OF ANY PHYSICAL INJURY OR TRAUMA INCLUDING BRUISING, WELTING, OR BLEEDING, OVERCOMES THE AFFIRMATIVE DEFENSE OF PARENTAL DISCIPLINE.
Wе hold, based on the evidence of record, that a rational factfinder could have found beyond a reasonable doubt that appellant was guilty of assault consummated by a battery on a child and that such assault was not justified under the parental-discipline defense. We further conclude, as a matter of law, that a single punch can, without evidence of actual physical harm, overcome the affirmative defense of parental discipline, where аs here, the trier of fact found beyond a reasonable doubt that the force used created a substantial risk of serious bodily injury and was unreasonable under the circumstances.
FACTS
Although appellant was convicted of assault consummаted by a battery against both his step-daughter and his step-son, at issue is only appellant‘s assault of his step-son, Edward. At the age of 13, Edward brought home a report card with several Ds and Fs. Immediately after reviewing the report card, appеllant “started screaming” and told Edward that he needed to “get [his] stuff straight.” Edward testified at trial that appellant then “got mad and punched me in my stomach and I fell down....” Edward testified that he “stayed down” until appellant “stopped talking” and left.
DISCUSSION
Appellant argues that based on the Government‘s proof, no reasonable factfinder could find beyond a reasonable doubt that the purpose and degree of force used by appellant moved on a continuum from reasonаble parental discipline to criminal conduct. Because the test of legal sufficiency under specification 1 of the Charge is intertwined with resolution of Issue II, we treat the questions together.
“The test for” legal sufficiency “is whether, cоnsidering the evidence in the light most favorable to the prosecution, a reasonable factfinder could have found all the essential elements beyond a reasonable doubt.” United States v. Turner, 25 MJ 324 (CMA 1987) (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)).
In the present case the Government had the burden оf presenting the factfinder with proof beyond a reasonable doubt that appellant attempted “with unlawful force or violence to do bodily harm to another person, whether or not the attempt is consummated.”
Appellant argues that he used fоrce with appropriate motive, to discipline his child for poor performance in school. He also argues that the force used was necessary parental discipline and that his single blow did not cause substantial risk of serious bodily injury. Appellant argues this is evidenced by the absence of any physical harm to Ed-
In United States v. Brown, 26 MJ 148, 150-51 (1988), and United States v. Robertson, 36 MJ 190, 191-92 (1992), this Court applied the standards of the Model Pеnal Code in determining whether the Government overcame appellant‘s defense of parental discipline. Section 3.08(1), Model Penal Code (ALI 1985), reprinted in ALI Model Penal Code and Commentaries 136 (1985), states that force may be used by рarents or guardians when
(a) the force is used for the purpose of safeguarding or promoting the welfare of the minor, including the prevention or punishment of his misconduct; and
(b) the force used is not designed to cause or known to creаte a substantial risk of causing death, serious bodily injury, disfigurement, extreme pain or mental distress or gross degradation....
As a result, both the Government and appellant have argued this case on the basis of the Model Penal Code. Because this Cоurt‘s conclusions in Robertson and Brown relied, in part, on the existence of numerous blows as well as physical evidence of harm, and because the parties in this case do not contest that there was only one punch (of disputed force) to the stоmach, for which there was no documented medical manifestation, this case tests anew the scope of the parental-discipline defense.
Jurisprudence in the area of parental discipline must be developed with caution. In this area of law there is an inherent tension between the privacy and sanctity of the family, including the freedom to raise children as parents see fit, and the interest of the state in the safety and well-being of children. The affirmative dеfense of parental discipline resides at a crossroad of these two significant interests. Caution is also advisable because society accepts some, but not all, forms of corporeal punishment. It is the duty of appellate courts to say what the law is; not to make moral judgments about what the law should be. Moreover, the enormous variety of variables that affect human interaction and which place the family at the core of a child‘s social interaction cautions against black letter rules of conduct.
One need not look to the Bible, Dickens, or Twain to understand that parental discipline is as necessary as it is varied and that parental discipline has always had a physical component. We need only look to our own experience. Experience also teaches that a finger to the eye, or a slap to the head, can cause as much harm as a closed fist. Punches cаn be playful or even affectionate. For these reasons, we eschew a per se rule.
Brown established a test of contextual reasonableness in determining when proper parental motive turns to criminal anger, or necessary force becomes a substantial risk of serious bodily harm. Clearly what is reasonable between a father and his 13-year-old son may be unreasonable with an infant. However, human experience also teaches that a single punch to the torso or head can kill or cause serious bodily injury. This conclusion does not rest on specialized medical knowledge, but rather on the everyday “common sense and [their] knowledge of human nature and of the ways of the world” expected of triers of fact, who have been to the playground, trained in the combat arms, or read the sports page. United States v. Oakley, 11 USCMA 187, 191, 29 CMR 3, 7 (1960) (Ferguson, J., concurring).
We expect a lot of our servicemembers, and sometimes we expect more of them than
As a result, we hold that in the context of this case the members could have properly concluded that one closed-fist punch to the stomach can cause substantial risk of serious bodily injury as contemplated by this Cоurt‘s decisions in Brown and Robertson. We also hold that the burden of establishing substantial risk can be met without physical manifestation of actual harm.4 A rule that requires physical evidence of injury invites one blow too many.
While we do not adopt a per se rule involving closed fists, as some states have, we rеcognize that a closed-fist punch bears certain burdens, which carry forward through case law. Use of a closed fist does not prove ill motive; however, it may more readily allow the factfinder to infer ill motive and undermine a claim оf proper intent. And while use of a closed fist does not per se risk serious injury, as compared to a slap or a spank, a fist amplifies force magnifying the likelihood that a punch will be found to create a substantial risk of serious bodily injury.
Having concluded that use of a single punch to the stomach can be legally sufficient to prove an assault upon a child, what is left to decide is whether in this case, applying Jackson v. Virginia, 443 U.S. at 319, 99 S.Ct. 2781, the prosecution proved beyond a reasonable doubt that appellant‘s motive was improper or that the force he used was unreasonable under the circumstances. RCM 916(b), Manual for Courts-Martial, United States (2000 ed.).
It is beyond peradventure of doubt that a very bad report card is an appropriate predicate for parental discipline. In this case, the record also documents appellant‘s desire to improve Edward‘s scholastic performance. We need not look into appellant‘s psychе to measure the degree to which he was also motivated by anger or whether the trier of fact could have reasonably concluded his motive was more anger than discipline. For appellant‘s claim is defeated by our cоnclusion that the members could have properly found that the force he used was unreasonable. Three facts are critical. Edward was struck with a closed fist; he was punched. He was struck in the stomach. And, based on Edward‘s testimony, and aрplying Jackson v. Virginia, 443 U.S. at 319, 99 S.Ct. 2781, the members could reasonably conclude that he was struck with sufficient force so as to fall down, and thus with sufficient force so as to cause a substantial risk of serious bodily injury when punched. And it was reasonably within the common knowledge of thе members that a blow to the stomach that is strong enough to knock a 13-year-old down creates a substantial risk of serious bodily injury.
The decision of the United States Army Court of Criminal Appeals is affirmed.