Appeal from the Superior Court of the District of Columbia (F7578-99) (Hon. Robert E. Morin, Trial Judge)
Before Wagner, Chief Judge, and Reid and Glickman, Associate Judges.
The opinion of the court was delivered by: Reid, Associate Judge
Appellant Otis M. Jones was convicted of first-degree cruelty to children, in violation of D.C. Code § 22-901 (a) (1996), recodified at § 22-1101 (a) (2001); and second-degree cruelty to children, in violation of § 22-901 (b), recodified at § 22-1101 (b). *fn1 He contends on appeal that the trial court: (1) improperly instructed the jury on the offense of cruelty to children by failing to include malice as an element of the offense; and (2) committed reversible error by admitting hearsay statements made by his son, under the medical diagnosis exception to the hearsay rule. We hold that the trial court did not err, let alone plainly err in instructing the jury as to the statutory offenses of first-and second-degree cruelty to children, because malice is not an element of the current cruelty to children statute; rather, to satisfy the mens rea requirement, the government need only show that a defendant acted "intentionally, knowingly or recklessly." We further reaffirm our prior holding that the government is not required to show malice in order to defeat the parental discipline defense to the charge of cruelty to children. Finally, we conclude that the trial judge did not err in admitting the statements T.J. made at the hospital because those statements fell within the medical diagnosis and treatment exception to the hearsay rule.
The government's evidence presented at trial showed that Mr. Jones decided to discipline his ten-year-old son, T.J., on October 12, 1999, because of behavioral problems at school. After his girlfriend, with whom he and his son lived, left their residence, Mr. Jones secured his son's hands with duct tape and, as he put it during his testimony at trial, "whooped" him. T.J. defecated on himself. After beating T.J., Mr. Jones took pictures of him in the nude and threatened to embarrass T.J. by sending the pictures to T.J.'s school. When his girlfriend returned to the apartment, she smelled feces as she entered, and Mr. Jones showed her the pictures he had taken of T.J. T.J. complained of a bruise on his arm.
The following day, T. J. went to school, and from there was taken to the Children's National Medical Center. There he was seen by Dr. Christina Johns, an Emergency Department physician. T.J. told Dr. Johns "that his father tied his hands with tape and hit him with a wire brush." He was hit "a lot" of times. Based on a medico-legal form that had been completed while T.J. was at the hospital, Dr. Johns testified that T.J. "had multiple contusions, multiple bruises, in scattered places on his body," including a bruise on his face, and contusions on his right shoulder and right thigh. There were "red and purple marks, 8 by 10 centimeters, and contusions" on his buttocks, and broken skin, or a laceration, also on his buttocks. In addition, Dr. Johns saw what appeared to be "pieces or remnants of gray tape" on the arms or wrists of T.J. T.J.'s injuries were treated with ice, Motrin, Tylenol, and "some local wound dressing." Detective Kimberly Mason-Robinson, who carried T.J. to the hospital, viewed his injuries at the hospital and photographed them.
The trial testimony of Mr. Jones was consistent in material respects with the statements Dr. Johns took from T.J. Mr. Jones admitted that he "grabbed a scrub brush," "bonded [T.J.'s] hands together . . . and then spanked him on his behind." He acknowledged hitting T.J. at least 10 or 12 times and admitted that it was "possible but not likely" that T.J. "was hit more than 12 times."
Mr. Jones first contends that the trial court failed to instruct the jury that "the government must prove . . . that the defendant acted with 'malice' or out of a desire to inflict pain rather than out of genuine effort to correct [T.J.]. . . ." The government maintains that the trial court's instructions were correct, based on the version of the statute under which Mr. Jones was charged. *fn2
Because Mr. Jones' contention was not raised in the trial court, we review it for plain error. See Coates v. United States, 705 A.2d 1100, 1104 (D.C. 1998); see also United States v. Olano, 507 U.S. 725, 731-32 (1993); Wilson v. United States, 785 A.2d 321, 326-27 (D.C. 2001). "Under the plain error standard, '[t]he error must be: (1) obvious or readily apparent, and clear under current law; and (2) so clearly prejudicial to substantial rights as to jeopardize the very fairness and integrity of the trial.'" Coates, supra, 705 A.2d at 1104 (citations omitted).
In this case, Mr. Jones was charged under a revised cruelty to children statute which divided this crime into two degrees - first-and second-degree cruelty to children, neither of which requires proof of malice. Rather, to prove the mens rea requirement of the revised statute, the prosecutor need only show that a defendant committed the offenses "intentionally, knowingly or recklessly." D.C. Code § 22-1101.
In citing Carson v. United States, 556 A.2d 1076 (D.C. 1989), Mr. Jones confounds the old version of the statute with the new one. Since no mens rea standard was set forth in the prior version, Carson, supra, looked, in part, to the common law and "conclud[ed] that the offense . . . require[d] a showing of malice." Id. at 1078. In discussing malice in that case, we said, in part: "[A] parent acts with malice when a parent acts out of a desire to inflict pain rather than out of genuine effort to correct the child, or when the parent, in a genuine effort to correct the child, acts with a conscious disregard that serious harm will result." Id. at 1079. Our decision in Newby v. United States, 797 A.2d 1233 (D.C. 2002), signaled that "[m]alice may or may not continue to be an element of cruelty to children . . . ." Id. at 1241. However, we did not resolve in that case the issue of whether malice is an element of the current cruelty to children statute.
We now hold that malice is not an element of the 1994 amended version of the cruelty to children statute, D.C. Code § 22-1101; rather, the government need only show that a defendant acted "intentionally, knowingly, or recklessly." See Gerald Smith v. United States, No. 00-CF-1169, slip op. (D.C. December 31, 2002). We also reaffirm our holding in Newby, supra, "that the government [is] not required to ...