Bountiful City v. Baize

2019 UT App 24

THE UTAH COURT OF APPEALS

BOUNTIFUL CITY,
Appellee,
v.
NATHAN DAVID BAIZE,
Appellant.

Opinion
No. 20170155-CA
Filed February 14, 2019

Second District Court, Bountiful Department
The Honorable Glen R. Dawson
No. 161800370

Scott L. Wiggins, Attorney for Appellant
Jacob L. Fordham, Attorney for Appellee

JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES KATE APPLEBY and JILL M. POHLMAN concurred.

MORTENSEN, Judge:

¶1 Utah’s criminal law recognizes that a parent may
discipline a child. Criminal sanctions may attach, however,
when parental discipline exceeds the bounds of reasonableness
or where serious physical injury results. After a bench trial,
during which the court heard evidence that Nathan David Baize
spanked his four-year-old son with enough force to leave a
bruise in the shape of a handprint, the court found Baize guilty
beyond a reasonable doubt of misdemeanor level child abuse.
Baize appeals, claiming the court misconstrued the facts and
misapplied the law. We affirm.
 Bountiful City v. Baize

BACKGROUIND1

The Incident of Abuse

¶2 In late June 2016, Baize had his four-year-old son (Victim)
for weekend parent-time. Baize and Victim’s mother (Mother),
are divorced and have joint custody of Victim. Victim spends
every other weekend with Baize.

¶3 On the weekend in question, Victim had been acting up,
and Baize and Mother exchanged emails about this behavior.
Mother recalled that the emails described Victim as “yelling and
screaming, washing out. He was saying terrible things, he was
going to hurt people. He was mad. He wanted to go home. He
was upset. Completely distraught.”

¶4 Victim was “throwing temper tantrums, using foul
language, [and] saying that he wanted [Baize] dead” on the day
of the abuse. The bad behavior escalated during a car ride to a
grocery store. Victim began kicking and punching his
grandmother, who was with Baize and Victim. It took about an
hour to calm down Victim enough to get him strapped in his car
seat. Even then, Victim continued to jump up and down,
“slamming his rear end on the bottom of the car seat.”

¶5 Once they got home, Victim continued to fight with Baize.
After trying various disciplinary interventions, Baize determined
that his last resort was to spank Victim. Baize put Victim over his
knee and warned him that he was going to be spanked unless he
calmed down. When Victim continued to swear and tell Baize
that he hated him, Baize spanked him one time. Baize gave
Victim additional warnings, and then spanked him a second and
third time.

1. On appeal, we construe the facts in the light most favorable to
the verdict. See State v. Miller, 2017 UT App 171, ¶ 2 n.1, 405 P.3d
860.

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 Bountiful City v. Baize

¶6 Eventually, Baize called Mother and asked that she pick
up Victim several hours earlier than the planned exchange.
While changing Victim’s clothes that evening, Mother noticed
bruising on his bottom. When she asked Victim what had
happened, he responded, “Don’t talk to me about this,” and
requested that everyone leave his room. A few minutes later,
Victim disclosed to Mother what had happened. Mother
immediately called the Division of Child and Family Services
(DCFS).

¶7 The next morning, Mother took photographs of the
bruising on Victim’s bottom, one of which was introduced as
evidence. Mother testified that the photograph accurately
depicted the injuries she saw on Victim: “I see fingerprints. I see,
that are bruised, bruising, fingerprints. There are lines on his
bottom, bruising. There [are] little spots on his bottom that are
bruised.” Mother stated that she “was pretty sick to [her]
stomach” when she saw Victim’s injuries.

¶8 An investigator from DCFS came by the day after the
spanking and advised Mother to call the police about the
incident. A detective (Detective) from the Bountiful City Police
Department was assigned to the case. Detective arranged an
interview for Victim at the Children’s Justice Center (CJC
Interview). After viewing the photographs and hearing Victim’s
CJC Interview, Detective determined that he needed to interview
Baize.

¶9 Detective testified that the photograph introduced at trial
depicted signs of redness consistent with diaper rash on Victim’s
bottom, but he also observed that it showed a yellowish bruise in
the shape of “a finger or a handprint.” Detective noted that there
were no reports indicating that Victim needed medical attention
for injuries related to the abuse. Detective also testified that
Baize appeared to be in control of what he was doing when he
spanked Victim.

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¶10 Bountiful City (the City) charged Baize with child abuse
in violation of Utah Code section 76-5-109(3)(c). Baize pled not
guilty and requested a bench trial.

The Proceedings

¶11 The City argued that it is not “illegal or wrong” to
discipline a child by spanking, but “when you spank a child to
the point where there is physical injury is where you come to a
Class C misdemeanor child abuse.” The City said that Baize
“should be aware that there may be bruising, that [he] may
injure a child. [He is] putting [his] hands on a child. It’s obvious
to all of us that there’s a risk that [he] may injure the child if [he]
spank[s] the child too hard.” The City further noted that it was
not arguing that Baize “committed child abuse by spanking
[Victim], once[,] twice[,] or three times. That’s . . . within his
realm as a parent to do. However, it’s clear that he left an injury
on the child. A handprint on the child’s behind, buttocks is
clearly caused only by spanking.” The City concluded, “We are
not here to stand up and tell the defendant how to parent his
child or whether spanking is right or wrong. None of that is in
play. It comes down to the fact that while disciplining his child
[he] left a handprint on him, bruised him . . . . That’s it.”

¶12 Baize’s trial counsel argued that spanking Victim “was
not a gross deviation from the standard of care based on facts
[and] specific evidence that [was introduced]. . . . [T]his
spanking was not done out of anger. It was in a controlled
manner. And it was as a result of trying to help the child calm
down and get under control.” Rather than admitting he struck
Victim too hard, Baize’s counsel argued that “[Baize] did not
take an unjustifiable risk to cause bruising.” Rather, “as a parent,
the only way that he had left [to discipline] in his repertoire . . .
[was] telling [Victim] what he was going to do and then
stopping after he had done it to the point where he thought that
was enough. That is not a gross deviation from the standard of
care.”

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 Bountiful City v. Baize

¶13 After hearing the evidence, including testimony from
Mother and Detective, and after hearing the arguments, the
court concluded:

The statute involved as we all understand is [Utah
Code section] 76-5-109. Any person who inflicts
upon a child physical injury—I’m just reading the
pertinent part—is guilty of an offense as follows.
Part C, if done with criminal negligence the offense
is a Class C misdemeanor. And, again, I previously
read the definition of criminal negligence. I won’t
read that again. It is the lowest of the four mens rea
standards that are recognized in Utah State law.

I further note that physical injury is defined under
[section] 76-5-109. And I’ll just read a small part of
that. “Physical injury means an injury to or a
condition of the child which impairs the physical
condition of the child, including, 1, a bruise or
other contusion of the skin.” There are other—
there is a further definition of physical injury, but
I’m just going to stop there for purposes of this
case.

The court continued:

[C]ertainly, a parent should be allowed to
discipline his children in an appropriate way. But
the level of contusion, the bruising on the buttocks
of the child causes me to come to the conclusion
that discipline was a gross deviation from the
standard of care that an ordinary person would
exercise. It was just too hard. It was too hard. And
in light of that, I will enter a judgment for a
conviction for the Class C misdemeanor, inflicting
physical injury on a child with criminal negligence,

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 Bountiful City v. Baize

finding proof beyond a reasonable doubt based on
the testimony of the two witnesses.

¶14 The judgment on the verdict was entered, and Baize was
sentenced. Baize now appeals.

ISSUES AND STANDARDS OF REVIEW

¶15 Baize raises two issues on appeal. First, Baize claims that
the district court misinterpreted and misapplied Utah Code
section 76-5-109 by concluding that he committed child abuse.
“The correct interpretation of a statute is a question of law and is
reviewed for correctness.” State v. Larsen, 865 P.2d 1355, 1357
(Utah 1993). Because it was not preserved at trial, Baize raises
this issue pursuant to plain error. To establish the existence of
plain error, Baize must show “(i) [a]n error exists; (ii) the error
should have been obvious to the trial court; and (iii) the error is
harmful, i.e., absent the error, there is a reasonable likelihood of
a more favorable outcome for the appellant, or phrased
differently, our confidence in the verdict is undermined.” State v.
Dunn, 850 P.2d 1201, 1208–09 (Utah 1993).

¶16 Second, Baize claims that his trial counsel deprived him of
effective assistance by failing to raise a defense of justification as
provided in Utah Code section 76-2-401. “When a claim of
ineffective assistance of counsel is raised for the first time on
appeal, there is no lower court ruling to review and we must
decide whether the defendant was deprived of the effective
assistance of counsel as a matter of law.” State v. Beckering, 2015
UT App 53, ¶ 18, 346 P.3d 672 (cleaned up). 2

2. In a separate rule 23B motion filed simultaneously with his
brief, Baize seeks remand to the district court to make findings
and conclusions that his trial counsel was ineffective in failing to
investigate and research the CJC Interview. “A remand under
(continued…)

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ANALYSIS

I. Interpretation and Application of Utah Code Section 76-5-109

A. The Statute’s Plain Language

¶17 On appeal, Baize argues that the district court erred in
interpreting and applying Utah Code section 76-5-109.
Specifically, Baize asserts that “the court failed to read
subsections (3) and (8) together as required by the language of
the statute.” Had the court properly considered the two
subsections, Baize contends, it would have concluded his actions
were justified and did not constitute child abuse.

¶18 “When interpreting statutes, we determine the statute’s
meaning by first looking to the statute’s plain language, and give
effect to the plain language unless the language is ambiguous.”
State v. Schofield, 2002 UT 132, ¶ 8, 63 P.3d 667 (cleaned up). In

(…continued)
rule 23B will only be granted upon a nonspeculative allegation
of facts, not fully appearing in the record on appeal, which, if
true, could support a determination that counsel was
ineffective.” State v. Lee, 2014 UT App 4, ¶ 5, 318 P.3d 1164
(cleaned up). And to “prevail on grounds of ineffective
assistance, a defendant must demonstrate, first, that counsel’s
performance was deficient, in that it fell below an objective
standard of reasonable professional judgment, and second, that
counsel’s deficient performance was prejudicial—i.e., that it
affected the outcome of the case.” State v. Hand, 2016 UT App 26,
¶ 2, 367 P.3d 1052 (cleaned up). Nowhere in Baize’s motion does
he demonstrate nonspeculative facts that would support a
determination that trial counsel was ineffective or any resulting
prejudice. The motion and accompanying affidavit make
conclusory allegations that the CJC Interview contained critical
evidence, but nowhere does Baize identify that evidence. Thus,
we decline to grant remand on Baize’s separate rule 23B motion.

20170155-CA 7 2019 UT App 24
 Bountiful City v. Baize

addition, “the plain language of a statute is to be read as a
whole, and its provisions interpreted in harmony with other
provisions in the same statute and with other statutes under the
same and related chapters.” Id. (cleaned up). Contrary to Baize’s
assertions, we conclude that the district court engaged in just
such an integrated analysis in reaching its decision that Baize
committed child abuse.

¶19 The portion of the statute Baize violated states that “[a]ny
person who inflicts upon a child physical injury or, having the
care or custody of such child, causes or permits another to inflict
physical injury upon a child is guilty of an offense . . . if [the
injury is] done with criminal negligence.” Utah Code Ann.
§ 76-5-109(3)(c) (LexisNexis 2017). 3 “‘Physical injury’ means an
injury to or condition of a child which impairs the physical
condition of the child, including . . . a bruise or other contusion
of the skin . . . .” Id. § 76-5-109(1)(e)(i).

¶20 Baize correctly asserts that Utah Code section 76-5-109(3)
must be read in harmony with section 76-5-109(8), which states
that “[a] person is not guilty of an offense under this section for
conduct that constitutes: (a) reasonable discipline or
management of a child, including withholding privileges; [or]
(b) conduct described in Section 76-2-401.” Id.
§ 76-5-109(8)(a)−(b). Utah Code section 76-2-401 states that a
“defense of justification” for alleged child abuse may be claimed
when “the actor’s conduct is reasonable discipline of minors by
parents, guardians, teachers, or other persons in loco parentis,”
unless such conduct results in serious bodily injury, serious
physical injury, or the death of the minor. Id. § 76-2-401(1)(c); see
also id. § 76-2-401(2). Thus, the statutes create a structure where a
parent-defendant may be convicted of child abuse when he

3. Because the statutory provisions in effect at the relevant time
do not differ in any material way from those now in effect, we
cite the current version of the Utah Code.

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 Bountiful City v. Baize

causes physical injury to a child, including bruising, unless the
conduct in question constituted reasonable discipline. 4

¶21 Baize argues on appeal that the district court failed to
undertake the “reasonable discipline” analysis required by Utah
Code section 76-5-109(8)(a). Specifically Baize states, “There is
nothing in the record demonstrating that the court read
subsection (3) of section 76-5-109 together with subsection (8) as
required by the plain language of the statute.”

¶22 We acknowledge that the court did not explicitly invoke
the numbers of the two subsections in interpreting and applying
the statute. But it is nevertheless clear from the record that the
court conducted such an analysis in applying the statute to
Baize’s conduct. The court stated:

[A] parent should be allowed to discipline his
children in an appropriate way. But the level of
contusion, the bruising on the buttocks of the child
causes me to come to the conclusion that discipline
was a gross deviation from the standard of care that an
ordinary person would exercise. It was just too hard. It
was too hard.

(Emphasis added.) Accordingly, the court focused on the fact
that Baize was Victim’s parent, a status which is relevant under
Utah Code section 76-5-109(8).

4. As the statute makes clear, the defense is available if the
conduct is (1) reasonable and (2) results in only physical injury.
Utah Code Ann. § 76-2-401 (LexisNexis 2017); see also id.
§ 76-5-109(1)(e) (defining physical injury). The defense is
unavailable for reasonable discipline that results in serious
bodily injury, serious physical injury, or the death of a minor. See
id. § 76-2-401(2); see also id. § 76-1-601(11) (defining serious bodily
injury); id. § 76-5-109(1)(f) (defining serious physical injury).

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 Bountiful City v. Baize

¶23 While the court never explicitly said Baize’s spanking of
Victim was “reasonable” or “unreasonable,” it did say his
conduct was “a gross deviation from the standard of care that an
ordinary person would exercise.” This is simply a variation in
nomenclature describing the concept of reasonableness. If
anything, the court’s finding is more specific than simply saying
the word “unreasonable.” We therefore consider Baize’s
argument that the district court failed to read the two
subsections together to be overly simplistic. Baize ignores that
the district court did undertake such an analysis, albeit using
different but equivalent language than that promoted by Baize.
And because the district court analyzed Baize’s conduct and
determined that it was a “gross deviation” from the ordinary
“standard of care,” we conclude that the court considered the
“reasonable discipline” analysis required by Utah Code section
76-5-109(8).

B. Reasonable Discipline of a Child

¶24 Alternatively, Baize argues that “the court’s
determination that the spanking of [Victim] was unreasonable is
contrary to common law principles that dictate punishment and
chastisement are to be considered in light of the age, condition
and disposition of the child, and other surrounding
circumstances.” Baize would have us understand that
“discipline by a parent—under circumstances such as that in the
instant case—is reasonable so long as the discipline is
administered in a good faith manner that does not inflict serious
physical injury on the child.” In essence, Baize argues that
parental discipline is reasonable provided that it (1) is done in
good faith and (2) does not cause serious bodily injury.

¶25 We reject Baize’s attempt to define reasonable parental
discipline. First, nowhere do the statutes in question use the
language, “administered in a good faith manner,” as a standard
for reasonableness. Baize has attempted to add a “good faith”
prong to the reasonableness standard without directing us to
supporting case law or other legal authority. Second, Utah Code

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 Bountiful City v. Baize

section 76-5-109 explicitly states that any person who inflicts
“physical injury” on a child is guilty of an offense. Utah Code
Ann. § 76-5-109(3) (LexisNexis 2017). In no way do any of the
statutes in question suggest that parental discipline resulting in
mere physical injury to a child is by definition reasonable, while
only discipline resulting in serious physical injury is unreasonable.
Rather, the statutes simply establish that the defense of
justification is unavailable to a parent who causes serious
physical injury in disciplining a child—not that inflicting
something less than serious physical injury is always reasonable.
See id. § 76-2-401(1)–(2). Thus, we decline to follow Baize’s logic
to the inevitable conclusion that a parent who physically injures
his child while inflicting discipline in good faith must be acting
reasonably.

¶26 Thus, we conclude that the district court did not plainly
err in its interpretation and application of the relevant statutes.

II. Ineffective Assistance of Counsel

¶27 Baize argues that his trial counsel deprived him of his
right to effective assistance of counsel by failing to bring the
justification defense identified in Utah Code section 76-2-401 to
the district court’s attention. The United States Supreme Court
established a two prong test to determine if counsel’s
performance is deficient. See Strickland v. Washington, 466 U.S.
668, 687 (1984). The test, as expressed by our supreme court,
requires a defendant to “show, first, that his counsel rendered a
deficient performance in some demonstrable manner, which
performance fell below an objective standard of reasonable
professional judgment and, second, that counsel’s performance
prejudiced the defendant.” Bundy v. Deland, 763 P.2d 803, 805
(Utah 1988). But “[i]t is not necessary to address both parts of the
test when the defendant makes an insufficient showing on one.”
State v. Veale, 2012 UT App 131, ¶ 5, 278 P.3d 153. Because we
conclude that Baize has failed to show his counsel performed
deficiently, we limit our analysis to the first prong.

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 Bountiful City v. Baize

¶28 Baize asserts that his counsel’s ineffective assistance is
demonstrated by the district court’s failure “to read and analyze
subsection (3) of section 76-5-109 together with subsection (8).”
Baize argues that his counsel “failed to recognize the
requirement of reading these provisions together.” Yet Baize
admits that his counsel’s “arguments at closing . . . . were
essentially consistent with the defense of justification.”

¶29 Baize’s ineffective assistance argument is without merit
precisely because his trial counsel—as Baize admits—argued for
a justification defense and the district court considered
justification as provided for in Utah Code section 76-5-109(8). See
supra ¶ 23. Trial counsel stated that Baize did not “take an
unjustifiable risk to cause bruising . . . . [T]he only way that he
had left [to discipline] in his repertoire . . . [was] telling [Victim]
what he was going to do and then stopping after he had done it
to the point where he thought that was enough. That is not a
gross deviation from the standard of care.” As with the analysis
of the district court, trial counsel was under no obligation to
refer to specific sections of the Utah Code in making the
justification defense argument. It is evident from the record that
Baize’s trial counsel effectively communicated the existence of
the justification defense without making explicit reference to the
subsections of the statute. Thus, we conclude that Baize has
failed to show ineffective assistance merely because his trial
counsel did not explicitly and simultaneously invoke specific
defenses available under Utah Code section 76-5-109(8).

CONCLUSION

¶30 Baize’s argument that the district court misconstrued the
facts and misapplied the law fails. On the record here we see no
error in the district court’s analysis, and we further conclude that
Baize has failed to show deficient performance by his attorney.

¶31 Affirmed.

20170155-CA 12 2019 UT App 24