Category Archives: Child Abuse

Assault or Swim Lesson?

Assault, Bellingham Defense Attorney, Child Abuse, Evidence, felony, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

Backlash over 'self-rescue' swimming classes for toddlers | News | The Times

In State v. Loos, the WA Court of Appeals held that although the defendant repeatedly submerged a toddler in a river during an impromptu swimming lesson, there was a lack of evidence proving the defendant’s actions were Assault.

FACTUAL BACKGROUND

Defendant Ms. Loos was babysitting J.T.S., a nonverbal, speech-delayed two-and-a-half-year-old toddler whom she had cared for throughout his infancy. Loos and a friend, Ms. Tetzlaff, decided to take a group of seven children to swim in the Jordan River that day.

While swimming in the river, Tetzlaff became concerned about Loos’s conduct. Tetzlaff testified that Loos picked up J.T.S. and said “it’s time to swim.” For the next minute – which was caught on camera – Loos engaged an impromptu swim lesson and tried teaching J.T.S. a swim technique called “infant self-rescue” by teaching him to float on his back.

In the 51-second video, Loos can be seen holding J.T.S. on his back in the water, and is heard telling him “when we scream, we go under.” After a moment, J.T.S. was submerged in the water for a few seconds and Loos pulled him back up out of the water. Loos repositioned J.T.S. on his back, at which point he began to struggle and tried to pull away.

Loos told J.T.S. again not to scream and he was again submerged. This time, Loos had one hand under J.T.S. and one hand on his chest. At trial, Tetzlaff testified that Loos was “holding him under the water.” T.L. similarly testified he saw Loos push J.T.S. under water, and T.L. could see J.T.S. flailing his arms while submerged. When Loos lifted him out of the water, he came up coughing and screaming. Eventually, Loos ended the swim lesson.

On December 1, 2017, approximately two and a half years later, the State charged Loos with one count of assault of a child in the third degree. During trial, Loos moved to dismiss the charge for insufficient evidence. The trial court denied this motion, although it acknowledged its decision was a “close call.”

The jury found Loos guilty. She appealed on the grounds of insufficient evidence.

COURT’S RATIONALE & CONCLUSIONS

The Court of Appeals began by saying due process of law requires that the State prove every element of a charged crime beyond a reasonable doubt in order to obtain a criminal conviction.

Furthermore, the court cited State v. Green in saying that in order to evaluate whether sufficient evidence supports a conviction, the court views the evidence in the light most favorable to the State to determine if any rational trier of fact could have found the essential elements of the charged crime beyond a reasonable doubt.

“Dismissal with prejudice is required when there is insufficient evidence at the close of the prosecution’s case in-chief to sustain a charged offense,” said the Court of Appeals.

Next, the court gave the statutory definition of “bodily harm” as “physical pain or injury, illness, or an impairment of physical condition,” And that this pain or impairment must be accompanied by “substantial pain.”

Finally, the Court of Appeals reasoned whether there was sufficient evidence that T.J. suffered substantial pain from the swimming incident. “J.T.S.’s coughing when pulled out of the water caused him some physical pain,” said the Court. “But neither the testimony nor the 51-second video of the incident supports any contention that J.T.S. was unable to quickly and easily eliminate the water from his throat or that he remained in any pain once he did so.”

“The evidence was undisputed that J.T.S. did not require CPR, did not vomit, did not lose consciousness, did not appear to have any swelling of his belly, did not sustain any lung injury, and needed no medical treatment. There is no evidence J.T.S. was inconsolable as a result of any ongoing pain or that any momentary pain he may have experienced lasted for any period of time after he coughed and Loos removed him from the water.” ~WA Court of Appeals

The Court of Appeals concluded by saying that no reasonable jury would find that J.T.S. suffered substantial pain that extended for a period sufficient to cause considerable suffering. With that, the Court of Appeals reversed Loos’s conviction.

My opinion? Good decision. The trial court erred when it denied Ms. Loos’ Motion to Dismiss pursuant to State v. Green. Better known as a Green Motion, this tactical trial maneuver allows defendants to request the judge dismiss criminal charges after the Prosecution has presented its evidence and rested its case.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

COVID-19 Brings DV Crimes?

Assault, Bellingham Defense Attorney, Child Abuse, Coronavirus, Domestic Violence, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Whatcom County Criminal Defense, , , , ,

Officials: Be aware of domestic violence risks as you shelter in ...

Interesting article by Jocelyn Noveck of the Associated Press describes a possible uptick in domestic violence related crimes resulting from couples and families being isolated together by the threat of COVID-19.

According to Ms. Noveck, concern is high in cities everywhere, and meaningful numbers are hard to come by.

“As the world’s families hunker down, there’s another danger, less obvious but just as insidious, that worries advocates and officials: a potential spike in domestic violence as victims spend day and night trapped at home with their abusers, with tensions rising, nowhere to escape, limited or no access to friends or relatives — and no idea when it will end.”

“In some cases, officials worry about a spike in calls, and in others, about a drop in calls, which might indicate that victims cannot find a safe way to reach out for help,” says Noveck.

In Los Angeles, officials have been bracing for a spike in abuse. “When cabin fever sets in, give it a week or two, people get tired of seeing each other and then you might have domestic violence,” said Alex Villanueva, the sheriff of Los Angeles County.

“We started getting on this as soon as soon as we started seeing the handwriting on the wall,” said Patti Giggans, executive director of the nonprofit Peace Over Violence in Los Angeles.

“One of the key challenges of this health pandemic is that home isn’t a safe place for everyone,” said Amanda Pyron, executive director of The Network: Advocating Against Domestic Violence, based in Chicago. “Victims and the abusers have to stay at the scene of the crime.” The group helps run a statewide 24-hour hotline, which has seen a spike in the average number of daily calls, from about 60 to 90, since confinement orders went into effect last weekend.

And at the group Women Safe, there’s been an uptick in calls. One change, said Frederique Martz, who runs the group, is that domestic violence victims are no longer being referred to hospitals which saturated with coronavirus cases.

Please contact my office if you, a friend or family member face criminal charges involving Domestic Violence during these turbulent times. Hiring an experienced criminal defense attorney is the first – and best – step toward achieving justice.

DV & Cohabitating Parties

Assault, Bellingham Defense Attorney, Child Abuse, Domestic Violence, Evidence, felony, Harassment, Skagit County Criminal Defense, Violent Crime, Washington Court of Appeals, Whatcom County Criminal Defense, , , ,

Image result for dv and parents with kids

In State v. Shelley, the WA Court of Appeals reversed the the defendant’s domestic violence convictions and held that a man, who is cohabitating with a woman and her child, does not necessarily have a “family or household” relationship to the child.

BACKGROUND FACTS

From late 2013 until April 2015, Defendant Aaron Shelley, his girlfriend Cheri Burgess, and her son from another relationship, A.S., lived with Shelley’s aunt and uncle.

On the evening of April 29, 2015, Shelley became angry and wanted Burgess to leave the house. After attempting to force Burgess out of the house, Shelley placed a knife against Burgess’s throat and stated he was going to kill her because she was not leaving. Shelley’s uncle, Mr. Sovey, intervened and convinced Shelley to give him the knife.

While Burgess and Sovey were talking in the kitchen, Shelley took A.S. out to the car. When Burgess confronted Shelley, Shelley grabbed A.S. by the throat. A.S. made a choking noise, “like he couldn’t breathe.” And when Burgess tried to grab A.S., Shelley said, “If you don’t leave or get away, I’m just gonna squeeze him, keep squeezing him. Get away from me. Leave, leave. Just effing leave. Leave my boy.” After Sovey came outside, Burgess walked away and called the police.

The State charged Shelley with, among other things, two counts of second degree assault as to Burgess, one count of second degree assault of a child as to A.S., and one count of felony harassment for threatening to kill A.S. The State alleged each crime was one of domestic violence.

The jury convicted Shelley of one count of assault as to Burgess. The jury found this was a crime of domestic violence because Shelley and Burgess were members of the same family or household. The jury also convicted Shelley of one count of assault as to A.S. and one count of felony harassment.

Shelley appealed on the issue of whether he was properly convicted of domestic violence acts against A.S.

COURT’S ANALYSIS AND CONCLUSIONS

The WA Court of Appeals reasoned that under RCW 10.99.020(3) and RCW 26.50.010(6), “family or household members” includes the following:

“Spouses, former spouses, persons who have a child in common regardless of whether they have been married or have lived together at any time, adult persons related by blood or marriage, adult persons who are presently residing together or who have resided together in the past, persons sixteen years of age or older who are presently residing together or who have resided together in the past and who have or have had a dating relationship, persons sixteen years of age or older with whom a person sixteen years of age or older has or has had a dating relationship, and persons who have a biological or legal parent-child relationship, including stepparents and stepchildren and grandparents and grandchildren.”

“The State had the burden of establishing Shelley and A.S. had a biological or
legal parent-child relationship,” said the Court. “It is undisputed that Shelley is not A.S.’s biological father because Shelley and Burgess did not meet until she was six months
pregnant.”

The Court also raised and dismissed the State’s arguments that Shelley’s presumption of parentage was proven under RCW 26.26.116 of the Uniform Parentage Act. “The State did not present the trial court with any evidence of such a judicial determination,” said the Court of Appeals. “On this record, the State’s presumptive parent and de facto parent
theories fail.”

The Court concluded that because A.S. and Shelley are not family or household members, the domestic violence special verdicts on count 3, second-degree assault of a child, and count 4, felony harassment, were invalid as a matter of law.

Please contact my office if you, a friend or family member are charged with DV crimes involving the children of unmarried boyfriends/girlfriends or domestic partners.  Like this case shows, the Prosecution may be unlawfully charging defendants with DV crimes when it lacks the authority to do so.

Is Spanking A Child Legal?

Assault, Bellingham Defense Attorney, Child Abuse, Criminal Mistreatment, Skagit County Criminal Defense, Uncategorized, Whatcom County Criminal Defense, , ,
Image result for spanking a child
 Every so often, I have Clients accused of Criminal Mistreatment, Child Abuse/Neglect, Assault in the Fourth Degree  or other crimes involving the abuse of children.
As a parent, you expect decisions about your own child’s well-being to be up to you.  Can the law interfere with your ability to discipline your child?  Can the law forbid you from spanking your child?

In Washington, parents are entitled to raise and reasonably discipline their children, so long as that discipline does not interfere with the children’s health, welfare, or safety.  Parents may reasonably use corporal punishment (like spanking) to discipline.

But what does the law in Washington really mean by “reasonably discipline”?  Under Washington law, the physical discipline of a child is not against the law when it is “reasonable and moderate.”  But what does “reasonable and moderate” mean?  Couldn’t those broad guidelines mean different things to different people?

To provide further guidance, Washington law elaborates that physical discipline is reasonable and moderate when it is “inflicted by a parent, teacher, or guardian for purposes of restraining or correcting the child.”  Physical punishment should be in direct response to a child’s disobedience or acting-out, rather than a blanket response to general bad behavior.  Any person besides a parent, teacher, or guardian must be authorized in advance by the child’s parent or guardian to use reasonable, moderate force to correct or restrain the child when it is appropriate.

Washington’s law also gives a list of unreasonable methods of disciplining a child, including:

  • throwing, kicking, burning, or cutting
  • striking a child with a closed fist
  • shaking a child under age three
  • choking or otherwise interfering with a child’s breathing
  • threatening a child with a deadly weapon
  • any other act that is likely to cause bodily harm greater than transient pain or minor temporary marks

So if we know what going way too far looks like, but we also know that physical punishment is okay when it’s reasonably tailored to correct a child’s behavior, where is the line between discipline and abuse, and how can parents avoid crossing it?

In Washington, child “abuse” is defined as “injury of a child by any person under circumstances which cause harm to the child’s health, welfare, or safety.”  When potential child abuse cases come before a court, the court will evaluate the child’s age, size, and health condition, as well as the location of the child’s injury and the surrounding circumstances, to help determine whether the acts at issue were reasonable discipline or abuse.

So ultimately, yes, parents, teachers and guardians are legally allowed to spank children for purposes of restraining or correcting the child. However, you must keep in mind (both for your sake as well as your child’s) that physical punishment should always be:

  • reasonable and moderate
  • inflicted by a parent, guardian, teacher, or someone with advance parental permission
  • intended to correct or restrain the child

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.