State v. Baron (2003-098); 176 Vt. 314; 848 A.2d 275
2004 VT 20
NOTICE: This opinion is subject to motions for reargument under
V.R.A.P. 40 as well as formal revision before publication in the Vermont
Reports. Readers are requested to notify the Reporter of Decisions,
Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
any errors in order that corrections may be made before this opinion goes
2004 VT 20
State of Vermont Supreme Court
On Appeal from
v. District Court of Vermont,
Unit No. 3, Lamoille Circuit
Raymond Baron September Term, 2003
Edward J. Cashman, J.
Craig S. Nolan, Lamoille County Deputy State's Attorney, Hyde Park, for
Frederick L. Woeckener, Hyde Park, for Defendant-Appellee.
PRESENT: Amestoy, C.J., Dooley, Johnson and Skoglund, JJ., and Allen, C.J.
(Ret.), Specially Assigned
¶ 1. DOOLEY, J. The State appeals a Lamoille District Court
decision granting defendant's motion to dismiss charges that he violated
the domestic assault statute, 13 V.S.A. § 1042. The State argues that the
trial court erroneously construed § 1042 to require serious bodily injury
in cases of parent-on-child assaults. We reverse.
¶ 2. The trial court dismissed this case pursuant to defendant's
V.R.Cr.P. 12(d) motion for lack of a prima facie case. In reviewing a Rule
12(d) motion, we consider whether the evidence, "taken in the light most
favorable to the State, excluding modifying evidence, would fairly and
reasonably tend to show defendant committed the offense, beyond a
reasonable doubt." State v. Millette, 173 Vt. 596, 596, 795 A.2d 1182,
1183 (2002) (mem.).
¶ 3. In light of this standard, the facts are as follows. On the
evening of June 20, 2002, defendant Raymond F. Baron came home to find his
sixteen year-old son, J.B., on the internet. Defendant wanted to use the
telephone and asked his son to terminate the internet connection. J.B.
responded with a few "smart words," and defendant went upstairs, presumably
to use the telephone, and found that his son had not disconnected from the
internet. Defendant went back down to the basement and asked his son a
second time to terminate the internet connection. J.B. again "sassed back
to him," and defendant then backed his son into a corner and struck him
with the back of his hand. After defendant struck J.B., he walked away
stating, "that was just a slap, next time I'll punch you." J.B.'s left eye
was swollen, he had scratches on his nose, a scratch on his right eyebrow,
and his glasses were bent as a result of the blow.
¶ 4. The following day, the State charged defendant under 13 V.S.A.
§ 1042, alleging that he had recklessly caused injury to his son. On
September 23, 2002, defendant, with counsel, appeared in the Lamoille
District Court to enter a guilty plea. Prior to the plea, the court
advised that it did not find sufficient probable cause to support a charge
under § 1042. Defendant then withdrew his plea and filed a motion to
dismiss pursuant to V.R.Cr.P. 12(d).
¶ 5. The court granted defendant's motion, finding that 13 V.S.A.
§ 1042 must be read in concert-in pari materia- with the civil abuse
prevention statute, 15 V.S.A. § 1101, and by reference in § 1101(1)(C), its
attendant definitions in the child protection statute, 33 V.S.A. § 4912.
See Wood v. Eddy, 2003 VT 67, at 10 (with respect to abuse to children,
proper definition of abuse is that in 33 V.S.A. § 4912). The court held
that the statutes must be read together because they both involve abuse to
"family and household members," terms partly defined in the abuse
prevention statutes, 15 V.S.A. § 1101(2). See 13 V.S.A. § 1041 (definition
of "family or household members" in abuse prevention statute applies to
subchapter containing § 1041). The court reasoned that since the domestic
assault statute borrowed one definition from the abuse prevention statute,
the legislative intent was that it borrow all definitions. Thus, the court
ruled that the definition of "bodily injury" in § 1042 was repealed by
implication with respect to an assault on a child and replaced with the
abuse prevention definition of "abuse." Because of that ruling, the court
concluded that § 1042 requires the State to prove a higher degree of injury
for parent-on-child assaults than for assaults involving only adults, and
that the State failed to meet that standard. In view of its decision that
the proper definition of domestic assault allows a measure of physical
parental discipline, the court did not address defendant's additional
argument that § 1042 contains a parental corporal punishment defense.
¶ 6. The State appeals the trial court's decision, arguing that the
court's construction of the domestic assault statute, 13 V.S.A. § 1042, was
erroneous. When interpreting a statute our overriding goal is to
effectuate the intent of the Legislature. State v. Dixon, 169 Vt. 15, 17,
725 A.2d 920, 922 (1999) (citations omitted). To effectuate the
Legislature's intent we first look at the plain, ordinary meaning of the
statutory language. Id. (citations omitted). If the plain language of
the statute "resolves the conflict without doing violence to the
legislative scheme" we are bound to follow it. Lubinsky v. Fair Haven
Zoning Bd., 148 Vt. 47, 49, 527 A.2d 227, 228 (1986); see also In re Weeks,
167 Vt. 551, 554, 712 A.2d 907, 909 (1998). We conclude that the plain
language of § 1042 does not require a higher degree of harm when the
offense involves parent-on-child assaults.
¶ 7. Section 1042 is a criminal domestic assault statute found in
chapter 19 of Title 13. The statute reads,
Any person who attempts to cause or willfully or recklessly causes
bodily injury to a family or household member, or wilfully causes
a family or household member to fear imminent serious bodily
injury shall be imprisoned not more than one year or fined not
more than $5,000.00, or both.
13 V.S.A. § 1042 (emphasis added). Section 1021, also in chapter 19,
defines "bodily injury" and "serious bodily injury" as follows:
For the purpose of this chapter:
(1) "Bodily injury" means physical pain, illness or any impairment
of physical condition;
(2) "Serious bodily injury" means bodily injury which creates a
substantial risk of death or which causes substantial loss or
impairment of the function of any bodily member or organ or
substantial impairment of health, or substantial disfigurement; .
. . .
13 V.S.A. § 1021 (emphasis added).
¶ 8. In contrast, the standard in 33 V.S.A. § 4912, incorporated by
reference in 15 V.S.A. § 1101(1)(C), see Wood, 2003 VT 67, at 10, is that
of an abused child whose "physical health, psychological growth and
development or welfare is harmed or is at substantial risk of harm" by the
acts of the parent. Harm can occur by physical injury, which means "death,
or permanent or temporary disfigurement or impairment by any bodily organ
or function by other than accidental means." 33 V.S.A. § 4912(6). This
standard is applicable only to abuse on children. The abuse prevention act
generally defines abuse as "attempting to cause or causing physical harm."
15 V.S.A. § 1101(1)(A).
¶ 9. Unlike the abuse protection act, neither § 1042 nor § 1021
distinguishes between parent-on-child assaults and other assaults on family
or household members. When a statute internally defines a term, we must
use that definition, not a definition contained in a different statute in a
different chapter. See Stenberg v. Carhart, 530 U.S. 914, 921 (2000)
("When a statute includes an explicit definition we must follow that
definition"); Dynamic Sports Fitness Corp. of Am., Inc. v. Cmty. YMCA of E.
Delaware County, 768 A.2d 375, 381 (Pa. Commw. Ct. 2001) ("[I]f a statute
provides an internal definition for a term, then the statute must be
construed according to that definition, not by a prior definition arising
from common law or a prior statute."). It is presumed that "[a] definition
which declares what a term means excludes any meaning that is not stated."
2A N. Singer, Sutherland Stat. Const. § 47.07, at 152 (5th ed. 1992); see
also Colautti v. Franklin, 439 U.S. 379, 392-93 n.10 (1979) (quoting
same). Thus, in construing § 1042 we are bound to use the definitions in §
1021 that the Legislature stated applies. If the Legislature had intended
different family or household relationships to be treated differently under
§ 1042, it would have stated so. See State v. DeRosa, 161 Vt. 78, 80, 633 A.2d 277, 278 (1993) ("[W]e presume the Legislature used the language [in
the statute] advisedly,"); State v. Camolli, 156 Vt. 208, 213, 591 A.2d 53,
56 (1991) (same).
¶ 10. We cannot conclude that the plain meaning of § 1042 was
changed by the theory of implied repeal adopted by the district court. The
district court held that the definitions of "bodily injury" and "serious
bodily injury" were impliedly repealed with respect to child victims and
replaced by the definition of "abuse" contained in the abuse prevention
act, 15 V.S.A. § 1101(1)(C). When interpreting statutes we presume that
there has been no repeal by implication. Vt. Tenants, Inc. v. Vt. Hous.
Fin. Agency, 170 Vt. 77, 83, 742 A.2d 745, 749 (1999). We will conclude
that a statute, or a provision in a statute, has been repealed by
implication by another act only if "(a) the acts are so far repugnant that
they cannot stand together, or (b) are not so repugnant, but the later act
covers the whole subject of the former and plainly shows it was intended as
a substitute therefore." Id.
¶ 11. The most obvious reason that the abuse prevention act did not
impliedly repeal the bodily injury definitions for the domestic assault
statute is that the domestic assault statute is later in time. The
domestic assault statute was enacted in 1993. See 1993, No. 95, § 2. The
abuse prevention statute was enacted in 1979, see 1979, No. 153 (Adj.
Sess.), § 1; the current definition of abuse, with the separate definition
for child victims was enacted in 1981, see 1981, No. 207 (Adj. Sess.), § 2.
An earlier statute cannot repeal a later statute by implication. See State
v. Foley, 140 Vt. 643, 645, 443 A.2d 452, 453 (1982) (question is whether
"subsequent enactment impliedly repeals a statute").
¶ 12. Even if the timing of the enactments supported repeal by
implication, we could not conclude that the elements are present here.
These statutes are not repugnant to one another because they deal with
different subjects. The statute before us deals exclusively with criminal
liability. The part of the abuse prevention act containing the definition
in issue involves the grounds for issuing a civil restraining order.
Moreover, the terms involved, "bodily injury" in the criminal statute, and
"abuse" in the abuse prevention act, are different. While we share the
district court's view that it would be preferable if the definition of the
triggering act was the same for both statutory schemes, or that there be no
criminal responsibility in circumstances where no restraining order could
be issued, the fact that the Legislature made a different policy choice
does not make the statutes repugnant.
¶ 13. Nor does the abuse protection act cover the whole subject of
the domestic assault statute, even with respect to abuse of children. It
deals with criminal liability only in the limited circumstance where a
person is subject to an abuse prevention order and violates it. See 15
V.S.A. §1108(e) (violation of abuse prevention order may be prosecuted as
criminal contempt with a maximum punishment of 6 months in jail or a $1000
fine or both). It did not replace the more general crime of domestic
assault with this limited criminal liability statute. See Foley, 140 Vt.
at 648, 443 A.2d at 454.
¶ 14. We cannot reach the same result relying on the statutory
construction maxim of in pari materia, as suggested by defendant. As we
pointed out in State v. Fuller, 163 Vt. 523, 527, 660 A.2d 302, 305 (1995),
"in pari materia is a statutory construction technique, and not a rule of
law." "[I]t is an 'aid' to construction, to be relied upon where
appropriate, but not where it leads to a result not consistent with
legislative intent." Id. (citations omitted). Even if we consider the
domestic assault statute and the abuse prevention act to be part of a
common statutory scheme that address the same subject matter or share a
common purpose, a prerequisite to applying the maxim, see Bd. of Trustees
of Kellogg-Hubbard Library, Inc. v. Labor Relations Bd., 162 Vt. 571, 574,
649 A.2d 784, 786 (1994); see also 2B N. Singer, Sutherland Stat. Const. §
51.03, at 138 (5th ed. 1992), the Legislature here has clearly expressed
its intent in its separate definition of "bodily injury" for purposes of
the domestic assault statute.
¶ 15. Accordingly, we hold that for purposes of this case, the
State must prove bodily injury as defined in 13 V.S.A. § 1021(1), and need
not apply a different and higher standard contained in 33 V.S.A. § 4912.
Since it is undisputed that the State demonstrated that it has sufficient
admissible evidence to meet the proper standard, the district court erred
in dismissing the prosecution based on the higher standard under V.R. Cr.
P. 12(d). Because of its construction of the applicable statutes, the
district court did not rule on defendant's claim that he is entitled to a
corporal punishment defense. We decline to address that issue in advance
of the district court.
¶ 16. Although we have decided this case in accordance with settled
principles of law, we agree with the sentiments expressed in Justice
Skoglund's concurrence. Our chief concern is the apparent inconsistency in
philosophy between the abuse prevention and domestic assault laws. Thus,
we find it illogical that defendant's conduct in striking his son does not
rise to domestic abuse to allow a court to stop it by issuing a restraining
order, but fits within the definition of domestic assault that may subject
defendant to criminal punishment. We urge the Legislature to reexamine
these statutory schemes to address this inconsistency.
Reversed and remanded.
FOR THE COURT:
¶ 17. SKOGLUND, J., concurring. According to the majority
decision, any parent who recklessly causes physical pain to their child can
be found guilty of domestic assault under the statute, 13 V.S.A. § 1042.
That is, any mom that slaps her son's hand when he insists on trying to
touch the burners on the stove or any dad that smacks his daughter's bottom
to stop her from biting her brother meets the statutory definition of
¶ 18. I agree that the trial court erred in finding that the
Legislature impliedly repealed the definitions of "bodily injury" contained
in the domestic assault statutes with respect to child victims and replaced
it with the definition of "abuse" contained in the abuse prevention act, 15
V.S.A. § 1101(1)(C). As the majority notes, an earlier statute cannot
repeal a later statute by implication.
¶ 19. I also agree that the domestic assault statute deals with
criminal liability, not civil restraining orders and that the plain
language appears to mean exactly what it says. However, I find illogical
the idea that one can be criminally responsible in circumstances where no
civil restraining order could issue. But, I cannot find the result so
absurd as to permit a different interpretation of statutory intent.
¶ 20. The majority suggests that, if the Legislature had intended to
treat parent and child relationships differently under § 1042, it would
have done just that. The Legislature did recognize the special
relationship between a parent and child when it included a more detailed
and restrictive definition of child abuse in the civil abuse statutes, a
relationship that includes reasonable discipline, be it verbal or corporal,
as part of the upbringing that is reserved to the parent.
¶ 21. The abuse prevention statute broadly defines "abuse" between
family or household members as the act of "attempting to cause or causing
physical harm." 15 V.S.A. § 1101(1)(A). However, § 1101(1)(C) applies
specifically to "abuse to children" and adopts the narrower definition of
abuse provided in 33 V.S.A. § 4912:
(2) An "abused or neglected child" means a child whose physical
health, psychological growth and development or welfare is harmed
or is at substantial risk of harm by the acts or omissions of his
or her parent . . .
(3) "Harm" can occur by:
(A) Physical injury or emotional maltreatment; . . .
(6) "Physical injury" means death, or permanent or temporary
disfigurement or impairment of any bodily organ or function
by other than accidental means.
33 V.S.A. § 4912(2), (3), (6).
¶ 22. In Wood v. Eddy, 2003 VT 67, at 2, a mother seeking a
relief-from-abuse order on behalf of her daughter argued that the statutory
scheme should make abuse of a minor as easy if not easier to substantiate
than abuse between adults. We disagreed, noting that the Legislature had
to weigh the interest in abuse prevention of a child against two additional
factors. First, the Legislature needed to preserve some degree of natural
parents' "fundamental liberty interest" in custody and management of their
children. Id. at 12; see also Santosky v. Kramer, 455 U.S. 745, 753
(1982). And, second, the Legislature acknowledged the impracticality of
substituting the judgment of a court for that of a parent who observes his
children on a regular basis and better knows their particular disciplinary
needs. The Court wrote: "[t]he balancing of these two factors against the
responsibility of abuse prevention yielded the larger degree of physical
harm required to prove child abuse under § 1101(1)(C), as compared with
domestic abuse between adults as defined by § 1101(1)(A)." Wood, 2003 VT
67, at 12.
¶ 23. If the Legislature honored the right of a parent to reasonable
disciplinary decisions in Title 15, how can we presume it intended to
ignore the same natural rights when it crafted the domestic assault
statute? Before the state stepped between a parent and child in matters of
discipline, I suspect that significant and heated debate about the role of
the government in parental decision making would have occurred. I
respectfully suggest that the Legislature would not have criminalized
parental corporal punishment without signaling their intent to do so.
¶ 24. However, I must concur that this is what they did.
Inadvertently, perhaps, but legally and literally, by the plain language
used, they made spanking a crime.