FREE ELECTRONIC LIBRARY - Online materials, documents





No. 1640

September Term, 2014








Opinion by Kehoe, J.

Filed: March 3, 2016 *This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.

— Unreported Opinion — Convicted by a jury in the Circuit Court for Wicomico County of second degree child abuse and second degree assault, appellant, Clifton Obryan Waters, presents two

questions, which we have rephrased:

I. Is the evidence sufficient to sustain the convictions?

II. Did the court abuse its discretion in overruling defense counsel’s objections to remarks made by the prosecutor during closing argument?

Finding no error or reversible abuse of discretion, we affirm the court’s judgments.

Facts and Proceedings The Victim in this case is Waters’s son, who at the time of the alleged offenses was six years old. On October 31, 2013, Waters took the Victim to the Emergency Department of Peninsula Regional Medical Center and stated that the Victim “fell down the stairs.” Dr. Florian Huber, an orthopaedic trauma surgeon, determined that there was a transverse fracture of the midshaft of the Victim’s femur. The doctor observed that the femur “had broken... in two halves, essentially, and there was some significant displacement.” The following morning, Dr. Huber operated on the Victim and stabilized the fracture.

-1 Unreported Opinion — On November 13, 2013, Dr. Huber conducted a “follow-up visit” with the Victim.

Following the visit, Dr. Huber “had [his] clinical manager notify Child Protective Services to look into the matter.” The following day, Detective Daniel Schultz of the Wicomico County Sheriff’s Office interviewed Waters. During the interview, which was recorded, Waters stated that the Victim fell down the steps “from upstairs down to the living room.” Later, however, Waters stated that he “hit [the Victim] with [his] hand.” Waters stated that he struck the Victim because “he wasn’t listening” and Waters “caught him in the refrigerator trying to sneak a juice.” Waters further stated: “I hit him pretty hard because my hand was swollen.” Detective Schultz also testified that medical records stated that the Victim was 3'11" tall and weighed approximately 65 pounds and that MVA records listed Waters as 6'3" and weighing 325 pounds.

At trial, the State called Dr. Huber, and the following colloquy occurred:

[PROSECUTOR:] To a reasonable degree of medical certainty, can you say whether the mechanism of injury for [the Victim’s] femur fracture...

is consistent with falling down the stairs?

–  –  –

[PROSECUTOR:] Is it likely?

[DR. HUBER:] Fortunately, there’s not a big series of children falling downstairs, so there is really no good population to draw from. If you were strike a stair exactly in the middle of your thigh, then the leg could break like that.

–  –  –


[DR. HUBER:] The way that the bone is broken is—in order to break a bone with a short transverse fracture line, it has to be a very forceful, direct impact right at that spot.

Later, Waters took the stand and testified that on the morning of October 31, 2013, he “came...

downstairs” and saw the Victim “in the refrigerator.” Waters stated:

“[W]hat [are you] doing? Didn’t I tell you [that] you couldn’t get no juice?” Waters then struck the Victim’s leg with an open hand. Waters stated that he struck the Victim “to correct him from what he was doing” and “to discipline him,” and that he believed that the Victim “would cry[] and then go sit down.” In rebuttal, the State called the Victim, who at the time of trial was seven years old. When the prosecutor asked the Victim how his leg was broken, he stated that his “dad stomped on it” three times. The Victim further stated that, before Waters “stomped” on his leg, Waters “touched” the Victim’s right shoulder with “[h]is fists.” When asked if he had fallen down the steps on the day that his leg was broken, the Victim responded “No.”

–  –  –

Waters was convicted of second degree assault1 and second degree child abuse2.

Waters contends that the evidence is insufficient to sustain either conviction. He claims that “the State failed to prove that [the Victim] was injured as a result of cruel or outrageous treatment or a malicious desire to cause pain, and not as a result of permissible parental discipline.” (Quotation marks omitted.) CR § 3-203(a) states “A person may not commit an assault.”

Criminal Law Article (“CR”) § 3-601 states in pertinent part:

–  –  –

The standard for appellate review of evidentiary sufficiency in a criminal case, summarized by the Court of Appeals in State v. Smith, 374 Md. 527 (2003), is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Weighing the credibility of witnesses and resolving any conflicts in the evidence are tasks proper for the fact finder. We give due regard to the fact finder’s findings of facts, its resolution of conflicting evidence, and, significantly, its opportunity to observe and assess the credibility of witnesses. We do not re-weigh the evidence, but we do determine whether the verdict was supported by sufficient evidence, direct or circumstantial, which could convince a rational trier of fact of the defendant’s guilt of the offenses charged beyond a reasonable doubt.

Id. at 533-34 (internal citations, quotations, and brackets omitted).

At common law, a parent could inflict “moderate and reasonable” physical punishment on a minor child without incurring criminal liability for assault, battery and similar offenses. Bowers v. State, 283 Md. 115, 126 (1978). What was “moderate and reasonable” depended upon, among other factors, the “age, condition and disposition of

the child.” Id. The Bowers Court continued:

Put another way, a parent was not permitted under the common law to resort to punishment which would exceed that properly required for disciplinary purposes or which would extend beyond the bounds of moderation. Excessive or cruel conduct was universally prohibited.


This standard remains the law of this State, State v. Taylor, 347 Md. 363, 370–71 (1977), and is reflected in the definition of “child abuse” in CR § 3-601.

–  –  –

The State presented evidence that, at the time that the Victim’s femur was fractured, the Victim was six years old, and the femur “had broken... in two halves” with “significant displacement.” Dr. Huber testified that “a very forceful, direct impact” was required to cause such a fracture. Waters told Detective Schultz that he struck the Victim hard enough to cause his hand to swell. The Victim testified that Waters “stomped” on his leg three times. We conclude that a rational trier of fact, viewing this evidence in the light most favorable to the prosecution, could have found beyond a reasonable doubt that, in light of the Victim’s age, condition, and disposition, Waters resorted to punishment that exceeded that properly required for disciplinary purposes or which extended beyond the bounds of moderation.

Waters contends that “the evidence at trial demonstrated that [his] intent was to discipline his child for not obeying instructions.” But, the Court of Appeals has stated that a jury has the “ability to choose among differing inferences that might possibly be made from a factual situation,” and we must “defer[] to the inferences a fact-finder may draw.” Smith, 374 Md. at 534 (citations omitted).

Based upon the evidence, the jury could have rationally concluded that Waters’s actions “exceed[ed] that properly required for disciplinary purposes,” in other words, that he was guilty of second degree assault. Moreover, the jury could infer that Waters inflicted corporal punishment upon the Victim with a malicious desire to cause pain. We

–  –  –

Following the close of the evidence, the court instructed the jury:

Opening statements and closing arguments of lawyers are not evidence in this case. They are intended only to help you understand the evidence and to apply the law. Therefore, if your memory of the evidence differs from anything the lawyers or I may say, you must rely on your own memory of the evidence.

During the prosecutor’s closing argument, the following colloquy occurred:

[PROSECUTOR: E]ven if you credit the defendant’s minimized version, ladies and gentlemen, it is human nature to minimize our poor conduct. It is – that’s why Detective Schultz so aptly, it’s an interrogation technique.

Was it an accident? Was it an accident? Was it an accident? To get an admission. This defendant didn’t even, couldn’t even say it was an accident. That’s an interview technique that investigators use in child abuse cases because – [DEFENSE COUNSEL]: I object.

–  –  –

[PROSECUTOR]: People will admit to murder before they admit to child abuse.

Because it’s horrific, because it’s awful, because it’s never justified, and it certainly wasn’t in this case.

–  –  –

Even if you believe his version, there was no – he struck that child with such force to break a femur, to break a femur. That happens in car accidents, ladies and gentlemen.


–  –  –

Waters contends that the court erred in overruling defense counsel’s objections, because the prosecutor argued facts not in evidence. He claims that “the prejudice caused by these remarks” was “severe,” because “the prosecutor sketched some sort of psychological profile of a child abuser, then declared that [Waters] fit that profile.” Whether a prosecutor’s comments are unfairly prejudicial or “simple rhetorical flourish” is a question that lies “within the sound discretion of the trial court.” Spain v.

State, 386 Md. 145, 158–59 (2005). Among the factors that appellate courts should consider in deciding whether the trial court abused its discretion include “the severity of the remarks, the measures taken to cure any potential prejudice, and the weight of the evidence against the accused.” Id. at 159.

When we apply the Spain factors to the case before us, we conclude that there is no basis for reversal. The trial court in the present case instructed the jury before closing argument that opening and closing statements “are not evidence in the case.” The prosecutor’s comparison of Waters to a child abuser is legitimate argument—after all, Waters was charged with child abuse. We reach the same conclusion regarding the

–  –  –

prosecutor’s characterization of Detective Schultz’s interview of Waters. The prosecutor’s statement that broken femurs “happen[] in car accidents,” is closer to the line, although Dr. Huber did testify that broken femurs of the type suffered by the Victim are unusual for children of the Victim’s age. Serious automobile accidents are unusual also. Assuming, arguendo, that the challenged remarks were improper, the remarks were isolated events that did not pervade the entire trial. Finally, and most important in our view, the evidence against Waters was extremely strong.

We are convinced beyond a reasonable doubt that any suppositional abuse of discretion by the court in overruling defense counsel’s objections to the prosecutor’s remarks in no way influenced the verdict.

–  –  –

Similar works:

«DemandAT Working Paper No.2 Norbert Cyrus The Concept of Demand in Relation to Trafficking in Human Beings. A Review of Debates since the late 19th Century Norbert Cyrus December 2015 This project has received funding from the European Union’s Seventh Framework Programme for Research, Technological Development and Demonstration under Grant Agreement No. 612869 DemandAT Working Paper No.2 Norbert Cyrus About the project Trafficking in human beings covers various forms of coercion and...»

«Copyright © 2008 by A.E. Fekete MONETARY REFORM: GOLD AND BILLS OF EXCHANGE Address before the Civil Society Institute at Santa Clara University November 3, 2008 Antal E. Fekete Gold Standard University Introduction The Great Depression of the 1930’s was not due to the ‘contractionist propensities’ of the gold standard as alleged by John M. Keynes. Nor was it due to fractional reserve banking as alleged by Murray Rothbard. Rather, it was due to the government’s sabotaging the clearing...»

«PRAYING DIFFERENTLY Dennis H. van Lier W is not based on theological argument—that HAT I HAVE TO SAY would be beyond my competence. What follows is, rather, the fruit of experience, reading and intuition. Like many others of my generation—I was born in the 1920s—I was brought up with a set of classical prayer practices. Since I am Roman Catholic, these included the rosary, morning and night prayers, grace before and after meals, and later the breviary. But gradually I was led into...»

«Random and predictable task switch 1 RUNNING HEAD: RANDOM AND PREDICTABLE TASK SWITCH A MORE COMPLETE TASK-SET RECONFIGURATION IN RANDOM THAN IN PREDICTABLE TASK SWITCH Francisco J. Tornay and Emilio G. Milán Universidad de Granada (Spain) Random and predictable task switch 2 ABSTRACT Three experiments are presented which compare the cost found when switching from one task to another in two different conditions. In one of them, the tasks switch in predictable sequences. In the other condition,...»

«Stourbridge Old Edwardian Club ANNUAL REPORT 2015 CONTENTS 1 Executive Summary 3 2 Officers of the Club 3 2.1 The President 3 2.2 Honorary Secretary 3 2.3 Honorary Treasurer 4 2.4 Honorary Membership Secretary 4 2.5 Honorary Solicitor 4 2.6 Honorary Auditor 4 2.7 The Stewards 4 3 Committees 5 3.1 Committee Business 5 3.2 The General Committee 5 3.3 Sub Committees 5 4 Reports For the Year 6 4.1 Treasurer’s Report 6 4.2 Membership Report 6 4.3...»

«Draft, March 2000 THE STRUCTURE(S) OF PARTICLE VERBS* Susi Wurmbrand Abstract This paper argues that particle verb combinations do not display a uniform structure but are represented either as a small clause structure or a complex V’-structure. The central claim is that particle verb combinations fall into two classes semantically—transparent vs. idiomatic particle verb combinations—and that this interpretive difference is reflected in the syntactic structure of particle verb...»

«Introduction You hear his little feet stomping up the wooden porch steps fast as they can go on a summer’s afternoon. You yell, “Don’t slam the screen door—” SLAM! “Mom! Mom!” he hollers, so out of breath he can hardly get the words out. Why are boys are so loud? you think. You hand him a glass of water, and he attempts to drink and tell his oh-so-important story at the same time. “Mom—GULP—I—GULP—saw—GULP, PANT, PANT— the most—GULP— biggest—GULP, PANT, PANT....»

«Editorial style guide Edition 2– October 2015 Introduction Style n. the particular mode of orthography, punctuation and design followed in a book, journal, etc. or in a printing or publishing house. for the use of writers. Orthography is the method of writing a language. It includes rules of spelling, hyphenation, capitalisation, word breaks, emphasis and punctuation. This editorial guide is the house style for the Diocese of Ely and is designed to help and support us all in writing clearly,...»

«Cindy Lee Scott and Elizabeth Drolet UCLA/Getty Master of Conservation of Archaeological and Ethnographic Materials Rita Blaik University of California, Los Angeles The Characterisation and Removal of Lac Dye Staining on White Ground Ceramics Scott, Drolet and Blaik, ANAGPIC 2010,1 This project began with the conservation of a polychrome white-ground lekythos on loan to the Department of Antiquities Conservation of the J. Paul Getty Museum by the Antikensammlung Museum in Berlin in 2006 (Figure...»

«Licence Server User Guide Edition 5.1 November 2007 Booklet written by Daniel Spreadbury, Andrew Pearson and Richard Payne. Sibelius Licence Server copyright © 2001–2007 Sibelius Software, a division of Avid Technology, Inc. The Sibelius Licence Server constitutes part of the Sibelius Product and is subject to the Sibelius licence agreement, supplied with Sibelius or available on request. You are not licenced to install or use the Sibelius Licence Server unless you are a registered Sibelius...»

«Raub, T.D. and Kirschvink, J.L. A Pan-Precambrian Link Between Deglaciation and Environmental Oxidation. In: Antarctica: A Keystone in a Changing World. Proceedings of the 10th International Symposium on Antarctic Earth Sciences. (Eds., A.K. Cooper, P.J. Barrett, B. Stagg, B. Storey, E. Stump, W. Wise, and the 10th ISAES editorial team). National Academies Press, Washington, D.C., USA, pp. 83-90. A Pan-Precambrian Link Between Deglaciation and Environmental Oxidation Timothy D. Raub and Joseph...»

«Verification of Halting Properties for MPI Programs Using Nonblocking Operations Stephen F. Siegel1 and George S. Avrunin2 Verified Software Laboratory, Department of Computer and Information Sciences, University of Delaware, Newark, DE 19716, USA siegel@cis.udel.edu, http://www.cis.udel.edu/∼ siegel Laboratory for Advanced Software Engineering Research, Department of Computer Science, University of Massachusetts, Amherst, MA 01003, USA avrunin@cs.umass.edu, http://www.math.umass.edu/∼...»

<<  HOME   |    CONTACTS
2017 www.thesis.dislib.info - Online materials, documents

Materials of this site are available for review, all rights belong to their respective owners.
If you do not agree with the fact that your material is placed on this site, please, email us, we will within 1-2 business days delete him.