State v. Baron

Annotate this Case
State v. Baron (2003-098); 176 Vt. 314; 848 A.2d 275

2004 VT 20

[Filed 27-Feb-2004]


       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
  to press.


                                 2004 VT 20

                                No. 2003-098


  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
    Plaintiff-Appellant.

  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:



                                       _______________________________________
                                       Associate Justice


------------------------------------------------------------------------------
                                 Concurring


       ¶  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
  domestic assault.  

       ¶  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. 




                                       _________________________________
                                       Associate Justice