New Hampshire v. StarrAnnotate this Case
Defendant Peggy Starr appealed her conviction on one count of second degree assault, as a lesser included offense of first degree assault. In 2010, at six and one-half years of age, D.A. was hospitalized at a weight of just 23.4 pounds. At the time of his hospitalization, he suffered developmental delays, was failing to gain weight, and was short for his age. Ultimately, D.A. was diagnosed with failure to thrive due to malnutrition and psychosocial dwarfism. D.A. had been in the care of the defendant and her daughter, Christina Thomas. In addition to administering physical discipline, she would control his eating to modify his behavior. She took food away from him to punish him even after one of his treatment providers instructed that she not do so. Although defendant knew that D.A. was not growing taller, was not gaining weight, and was developmentally delayed, she told authorities at D.A.’s school that he was not to be given an extra lunch if he ate his packed lunch on the way to school, and she continued to withhold food from him as punishment. Within ten months of D.A.’s removal from the care of defendant and Thomas, his weight nearly doubled. Defendant was charged with first degree assault for knowingly causing serious bodily injury to D.A. by causing his “failure to thrive” condition by failing to provide him with proper nutrition. She moved to dismiss the indictment, arguing that the first degree assault statute did not impose criminal liability upon defendants for omissions. The trial court denied the motion, ruling that “first degree assault as charged in this case may be established by conduct constituting a voluntary act or a voluntary omission.” The New Hampshire Supreme Court affirmed the trial court’s decision.