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Florence v. United States

September 21, 2006


Appeal from the Superior Court of the District of Columbia (DV-3087-03) (Hon. Craig Iscoe, Trial Judge).

The opinion of the court was delivered by: Ruiz, Associate Judge

Argued April 11, 2006

Before RUIZ and KRAMER, Associate Judges, and FERREN, Senior Judge.

Appellant, Selenna*fn1 M. Florence, challenges the sufficiency of the evidence to support her convictions, after a bench trial, of assault and attempted second-degree cruelty to children where she presented a defense of parental discipline. The trial court found that appellant did not hit her child for a disciplinary purpose and rejected the defense. Because the trial court overlooked certain defense evidence and imposed too narrow a view on the defense of parental discipline, we reverse.


The events giving rise to appellant's convictions took place in September 2003. Appellant's daughter, Amber, who was eleven years old at the time, was excused from school early on September 3 so that appellant could take her to an appointment at a medical clinic for obese children at Georgetown University Hospital.*fn2 Amber testified that she had come home and appellant asked repeatedly that she change clothes and freshen up so that they could leave for the appointment. Instead, Amber went to the kitchen pantry and retrieved a bag of food items given to her by her father that she knew she was not allowed to eat (some hot cocoa and Cup-O-Noodles). Both appellant and her mother (Amber's grandmother) repeatedly asked Amber to give them the bag of food, but Amber refused. Finally, appellant took the bag from Amber, went upstairs, and hid the bag in her bedroom closet. Undeterred by her mother's admonishments, Amber went upstairs and ransacked her mother's room for the food, finally finding the bag in the closet.

Appellant, who had left the bedroom, came back in and took the bag from Amber once again. Appellant and Amber began arguing, and appellant asked her again to change clothes and get ready for her medical appointment. According to Amber, she and her mother pushed each other, and appellant eventually retrieved a curling iron from another room. Mother and daughter struggled over the curling iron, as Amber tried to wrest it from her mother's hands. Appellant hit Amber once on the leg with the curling iron -- which was not hot -- and twice on the hand when Amber attempted to block the blows to her legs. Amber, who acknowledged that she had pushed and hit her mother on previous occasions, testified that she did not "fight back" because she was afraid she would hurt her mother. Amber then called 911. Amber's grandfather later took Amber to the hospital, where she was given an ace bandage and an ice pack for her hand.

Officer Ronald Proctor testified that he arrived at appellant's home in response to a police radio broadcast reporting an "assault and battery" at appellant's address, and Amber's grandmother answered the door. She told him that she did not know what was going on, and she called Amber to come downstairs. When Amber appeared at the door, Officer Proctor noticed that she was holding her hand, which appeared swollen, and looked like she had been crying. Appellant then appeared at the door, and the officer explained why he was there. Appellant answered the officer's questions, and explained to him that she hit Amber with the curling iron because Amber had an appointment at the Georgetown Hospital clinic and was making them late. Appellant took the officer upstairs to the room and showed the curling iron to the officer.

Appellant's account tracked her daughter's for the most part, but gave greater detail about what happened, provided further information about Amber's past behavior, and explained the mother's motivation in this instance. Appellant testified that during their first argument in the kitchen over the bag of prohibited food items, Amber's grandmother had taken the bag of food from her, which prompted Amber to "snatch" the bag back and get "up in her grandma's face, thus being disobedient, disrespectful." Appellant told Amber to go upstairs and change clothes, and reminded her that her doctor had told her she could not have noodles or hot chocolate. Appellant took the bag away from her and took it upstairs to her closet, because Amber was not allowed to go in her closet without permission. Appellant then returned downstairs and told Amber, again, to go upstairs and change her clothes. Amber, instead, went out the front door and did not return for twenty minutes, until her grandfather came out and ordered her back in. She had ignored her mother's order to come back in the house, gave her "a lot of lip," and was "being very belligerent."

After she came back inside, Amber went upstairs and appellant heard "all this banging and things throwing down," so appellant went upstairs and found that her room "was trashed, had been ransacked." She saw Amber coming out of her closet with the bag of food, which she snatched from Amber's hands. They both became angry, and Amber "jumped" in appellant's face, being disrespectful, and telling her mother what she (Amber) would and would not do. Appellant "fussed" at Amber for being disrespectful and disobedient, and for tearing up her room; she told her, yet again, to go get dressed for her appointment. Amber was "yelling and screaming" and "throwing a temper tantrum." At this point in her testimony, appellant's story differs somewhat from Amber's account. According to appellant, Amber pushed past her and went into her grandmother's room, where there was a curling iron on the bed. Appellant testified that she followed Amber into the grandmother's room, and they both noticed and grabbed the curling iron at the same time, and began to struggle over it. Appellant finally took possession of the curling iron, and Amber stumbled back. Appellant hit Amber on the leg once with the curling iron, and when she tried to hit her a second time, Amber blocked the hit with her hand, and then started screaming that her hand was broken. Appellant looked at Amber's hand to make sure it was not hurt, and then told Amber to get up and change her clothes. Amber picked up the telephone and called 911.

When asked why she hit Amber with the curling iron, appellant responded:

Because Amber is stronger than I am and when I tap Amber with my hand, Amber doesn't feel it. My hand swells and so the [curling iron was] there and I was a little bit angry for having to continuously tell my daughter what to do and she really needs to be ready for this appointment. They made special preparation for her to go[,] to fit [her] in this EAT clinic after she had been to the endocrinologist. They were worried about her health and it was very important. I took off from work to take my child and then for her, to have to go through all, you know, her fussing and screaming and hollering and disrespecting me as her mom, talking back, you know, and so that's basically why I hit her with the [curling iron].

Appellant recounted that Amber had frequently misbehaved in the past: destroying her grandmother's property; throwing oranges through the glass vent windows, causing them to break; banging on the walls; writing all over the walls when there was something she did not want to do; slamming doors; and talking back to her grandmother, "getting up in her face." Most recently, the day before this incident, Amber had refused to obey her grandmother and, in protest, repeatedly kicked her grandmother. Amber had also pushed and shoved appellant before. Appellant reiterated that she hit her daughter that day because "she was being disobedient and defiant and belligerent," and "to discipline her because Amber was not ...

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