Carson v. United States

BELSON, Associate Judge,

concurring:

I concur in the result of the court’s opinion, and join in Part I in which it concludes that conviction of the crime of cruelty to children requires a showing of malice. I write separately for two reasons: first, to describe more fully the evidence of beatings and resultant injuries to the children, because such a description will help explain why conviction was appropriate here, and, second, to state my understanding of why the record supports the trial judge’s findings of fact and determinations of guilt.

The government’s evidence included the testimony of the police officer who observed Everett receiving treatment at Children’s Hospital, nine photographs of Charmaine, Everett, and Angelica taken while they were being treated, and two statements appellant gave the police later that afternoon. The photographs show numerous bruises and abrasions all of which are in the characteristic “loop” configuration caused by the doubling of an electrical extension cord.

The marks on six-year-old Everett were the most severe. They spanned from the back of his neck, down his right arm, to his right thigh. Seven marks were clustered around his right elbow. On his thigh was a large area of about a dozen loop-shaped lacerations and dark bruises. There were unhealed sores in at least four places where the skin was broken. The photographs of five-year-old Angelica show a laceration on her left arm, a welt on her upper left arm, and three large abrasions as well as several bruises on her inner right thigh. The marks on Charmaine were less severe. Although the photographs show approximately twelve “loops” on her right thigh, they are much fainter and less discolored than those found on her brother and sister, and none of them shows the skin broken.

Based on the government’s evidence and appellant’s own testimony, the trial court found appellant guilty of cruelty to Everett and Angelica, but not guilty of cruelty to Charmaine.

The majority chooses as the appropriate framework for the analysis of whether malice was shown the following formulation set forth by Perkins and Boyce in their treatise at p. 860:

malice in the legal sense imports (1) the absence of all elements of justification, excuse or recognized mitigation, and (2) the presence of either (a) an actual intent to cause the particular harm which is produced or harm of the same general nature, or (b) the wanton and wilful doing of an act with awareness of a plain and strong likelihood that such harm may result.

This court has previously used this definition of malice, Charles v. United States, 371 A.2d 404, 411 (D.C.1977), and I agree that it is appropriate. I disagree, however, with the majority opinion’s implicit holding that the trial court erred in finding the actual intent referred to in part 2(a) of the formulation, and also with the majority opinion’s equivocation regarding the trial court’s finding of what is termed “conscious disregard” of the serious injury that would attend such a beating, this being the alternative means of making the affirmative showing that must underpin a conclusion that a defendant’s act was malicious, expressed in part 2(b) of the formulation.

In reviewing the trial court’s findings in a criminal proceeding, this court is to affirm unless reversal is required because of an error of law or because it appears that the trial court’s “judgment is plainly wrong or without evidence to support it.” D.C. Code § 17-305 (1981). We must apply this standard of review to the trial court’s finding that the appellant

had an intent to inflict pain on [them] as what she perceived to be punishment. And I think she had the intent and I’m satisfied she had the intent to inflict pain and — and injuries, not permanent injury but injuries that were unreasonable and *1082 disproportionate to what was appropriate given the age of these children and the occasion.

It is clear that the nature of the injuries inflicted by extension cord on Everett and Angelica and the evidence of the circumstances of their infliction are more than sufficient to insulate the trial court’s findings from reversal upon application of the statutorily prescribed standard of review. Appellant’s administration of a protracted series of blows with the looped electrical cord, severe enough to leave outlines and open sores on a child’s body a day later, furnishes strong support for the trial court’s finding. I disagree, therefore, with the majority’s statement that “we cannot conclude that the evidence justifies the inference that appellant acted out of a desire to inflict pain rather than out of a genuine effort to correct the children.” (Majority opinion at 1080.) Nor can I join in the majority’s treatment of the second alternative means of establishing malice, i.e., by “conscious disregard” of the serious harm that would result, although I agree with the majority’s end result — affirmance. After making what amounts to a finding of fact: “we do not believe that the punishment was so excessive or the manner so egregious as to lead to the conclusion that appellant acted with a conscious disregard of the serious harm which would result” (majority opinion at 1080), the opinion goes on to affirm the trial court’s express contrary finding.

Instead of doing that, I would simply affirm the trial court's careful findings of fact and determination of guilt by a straightforward application of the appropriate standard of review, i.e., that the trial court’s judgment was not plainly wrong or without evidence to support it. For the foregoing reasons, I concur in the result of affirmance.