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holding that the defendant's “irrational, hostile and reckless behavior” —cocking a loaded gun in the same room as a sleeping child and pointing it at the ceiling after threatening the child—was sufficient evidence to support the trial judge's conclusion that the defendant's “intentional acts placed the child in a zone of ‘reasonably expected’ physical danger”
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No. 5D99-2753.
Opinion filed August 31, 2000. JULY TERM 2000
Appeal from the Circuit Court for Marion County, Carven D. Angel, Judge.
James B. Gibson, Public Defender, and Thomas J. Lukashow, Assistant Public Defender, Daytona Beach, for Appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and P.W. Krechowski, Assistant Attorney General, Daytona Beach, for Appellee.
In this Anders appeal, Clines argues that, based on the undisputed material facts in the pleadings and probable cause affidavit, augmented by the police report, the crime of child abuse could not be established, pursuant to section 827.03(1)(b), Florida Statutes (1999). Thus, he was entitled to have his motion to dismiss the criminal charge granted. See Fla.R.Crim.P. 3.190(c)(4). All undisputed facts and inferences must be viewed most favorably to the state in such cases. We affirm.
Anders v. California, 386 U.S. 738 (1967).
Wilson v. State, 744 So.2d 1237 (Fla. 1st DCA 1999); State v. Fuller, 463 So.2d 1252 (Fla. 5th DCA 1985).
Section 827.03(1)(b) defines "child abuse" as:
An intentional act that could reasonably be expected to result in physical or mental injury to a child; . . .
As amended, the statutory offense of child abuse is no longer limited to actual physical or mental injury inflicted on a child. It now includes "any intentional act that could reasonably be expected to result in physical or mental injury to a child." The scope of the statute has yet to be explored by the appellate courts, and in some cases, it may be inappropriately applied. However, Clines is not arguing that the statute is overbroad or unconstitutionally vague, in general, or as applied to him. Thus we do not reach those questions or issues.
M.W. v. Davis, 756 So.2d 90 (Fla. 2000); Gibson v. State, 533 So.2d 338 (Fla. 5th DCA 1988).
The undisputed material facts were as follows. Clines, the father of a young child, got into a heated argument with the mother of the child. He made a verbal threat which implied he would kill the child. He went into the room where the child was sleeping, grabbed a loaded gun, cocked the trigger, and pointed it at the ceiling. The mother was alarmed to the point of dashing into the room and taking the child in her arms out of the room. The child did not wake up.
Clines made a threat to kill the child. He followed up that threat by arming himself with a loaded weapon and cocking it, ready to fire. Although he did not point it at the child, he pointed it at the ceiling. This type of irrational, hostile and reckless behavior by an excited or agitated person, unfortunately often results in shootings, which perhaps were not intended. All it would have taken was slight finger pressure to cause the gun to fire had Clines stumbled or lost his balance, or if the mother, instead of grabbing the child, had tried to disarm him. A bullet released and ricocheting about the nursery was a definite possibility in this scenario. In our view, these undisputed facts and inferences arising therefrom were sufficient for the trial judge to have concluded Clines' intentional acts placed the child in a zone of "reasonably expected" physical danger.
AFFIRMED.
SAWAYA, J., concurs.
GRIFFIN, J., dissents with opinion.
This defendant was charged with child abuse likely to cause injury. See § 827.03(1)(b), Fla. Stat. (1999). He filed a motion to dismiss alleging that there were no material disputed facts and the facts alleged in the probable cause affidavit and police reports did not establish that the defendant did any acts that would constitute child abuse. The undisputed facts were as follows: On November 15, 1998, Vivian Hogan and the defendant were involved in a verbal dispute over their two year old child, Samuel Hogan. At some point, defendant threatened that he would make sure that if he could not have the child neither one of them would have the child. Defendant then entered the room where the two-year-old child was sleeping; defendant got a gun out of a drawer and pointed it to the ceiling as he cocked the gun. Vivian Hogan picked the child up from the bed and removed him from the room. Defendant followed Ms. Hogan from the room and demanded that she give him the child. Defendant was not armed when he left the room, and he made no attempt to prevent her from leaving. Ms. Hogan left the house with the child. The child was asleep during the entire incident and did not witness any of these events.
The state filed a demurrer, stating that the undisputed facts established a prima facie case of guilt. The trial court denied the motion to dismiss, whereupon defendant pled nolo contendere and reserved his right to appeal the denial of that motion. Adjudication of guilt was withheld and defendant was placed on probation for two years.
Chapter 827, Florida Statutes, was amended in 1996 to expand the definition of child abuse. Ch. 96-322, § 8, Laws of Fla. Under section 827.03(1)(b), Florida Statutes (1999), the offense of child abuse includes "an intentional act that could reasonably be expected to result in physical or mental injury to a child." As amended, the statutory offense of child abuse is no longer confined to actual physical or mental injury inflicted upon a child, but includes any intentional act that could reasonably be expected to result in physical or mental injury to a child. Criminal statutes must be construed narrowly, Wallace v. State, 724 So.2d 1176, 1180 (Fla. 1998); section 775.021(1), Florida Statutes (1999), and special care must be taken with a broadly worded statute like this one. Although appellant created a potentially dangerous situation, the statute cannot be construed to punish the defendant based on what reasonable people would expect might happen next. In other words, for injury to the child reasonably to be expected, something more would have had to occur, such as the child waking, or pointing the gun at the child. The question has to be whether a reasonable person would expect that physical or mental injury would be caused to a sleeping child by the presence in the room of an angry man with a gun pointed at the ceiling. The answer to that question is no. Defendant's conduct is to be disapproved but it is not "child abuse." I would reverse this conviction.
It seems incongruous that the crime of "child abuse" can include an act which does not cause any physical or emotional injury to a child.