                           IN THE SUPREME COURT OF MISSISSIPPI

                                        NO. 2001-KA-00325-SCT

CRYSTAL LYNN BUFFINGTON
v.
STATE OF MISSISSIPPI



DATE OF JUDGMENT:                                 12/14/2000
TRIAL JUDGE:                                      HON. FRANK G. VOLLOR
COURT FROM WHICH APPEALED:                        WARREN COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                           FRANK J. CAMPBELL
ATTORNEYS FOR APPELLEE:                           OFFICE OF THE ATTORNEY GENERAL

                                                  BY: JEFFREY A. KLINGFUSS
DISTRICT ATTORNEY:                                G. GILMORE MARTIN
NATURE OF THE CASE:                               CRIMINAL - FELONY
DISPOSITION:                                      AFFIRMED-06/20/2002
MOTION FOR REHEARING FILED:
MANDATE ISSUED:                                   7/11/2002



     EN BANC.

     SMITH, PRESIDING JUSTICE, FOR THE COURT:


¶1. Crystal Lynn Buffington was tried in the Circuit Court of Warren County and convicted of felony child
abuse in violation of Miss. Code Ann. § 97-5-39(2) (2000). She was sentenced to twenty years in the
custody of the Mississippi Department of Corrections with seven years suspended and five years of post-
release supervision. She appeals and raises several issues, namely (1) whether the term "temporary
disfigurement" as the basis for determining what composes a "serious bodily injury" is unconstitutional; (2)
whether the testimony of co-indictee, Jerry Friley, was properly allowed; and (3) whether acts of omission
rather than commission can be the basis for felony child abuse.

¶2. Today, we adopt the standard first espoused by the plurality in Wolfe v. State, 743 So. 2d 380 (Miss.
1999), as the appropriate definition of "serious bodily harm" in felony child abuse cases. We also hold, as a
matter of first impression, that under Miss. Code Ann. § 97-5-39(2), acts of omission are also adequate to
constitute felony child abuse. Thus, we affirm the judgment of the circuit court.

                                                  FACTS

¶3. On November 2, 1999, Christina Breland went to the trailer of Buffington and her live-in boyfriend,
Jerry Lee Friley, to pick up their two year-old daughter so Buffington could plan her grandfather's funeral.
Breland noticed that the little girl was very unresponsive, her clothes were too small, and she appeared to
be underfed. Buffington told Breland that the child's "butt would be black and blue [] because she was
stupid and hardheaded and didn't want to potty-train. . . she'd been having to whip her butt because she
wouldn't potty-train." Breland testified that the child's parents neglected her, but that she had never
witnessed any physical abuse.

¶4. Once Breland and the child left the trailer, they headed to Breland's mother's house. The child acted
hungry, so they ate lunch on the way. The little girl spilled a drink all over herself, so upon arriving at her
mother's, Breland undressed the child to clean her up. She was shocked to find that the child "was black
and blue everywhere." Breland and her mother took the child to a neighbor's house and called Social
Services and the police before leaving for the hospital.

¶5. The child was admitted to the emergency room at 2:25 p.m. and released approximately two hours
later. She was examined by Dr. John Dawson, who "found a child that clinically appeared dehydrated,
malnourished, with numerous injuries." Based on his experience, Dr. Dawson believed that the child's
bruises did not happen at the same time and that her hair was missing/falling out as a result of ongoing
malnutrition. He did not test for organ damage at this time. All of her bruises and abrasions caused
temporary disfigurement. The doctor also stated that the injuries to the child's back, neck and face could
have created a substantial risk of death, but that there was no imminent danger of death.

¶6. The child's parents, Buffington and Friley, were arrested at their home on November 2,1999. They have
different versions of the events leading up to their arrests, as each blames the other for some of the abuse of
the child.

      Friley's version(1)

¶7. The statement Friley made to the police on the night of his arrest differs somewhat from his testimony at
trial. He told the police that he never used a belt to hit Brittany, only his hand. When Friley was examined at
Buffington's trial, he confessed to beating his daughter with a belt. Friley originally said that he only whipped
his daughter to make her stay away from wall sockets and to keep her from pushing on her bedroom
window. In his statement he said that sometimes he gets mad at Buffington and takes it out the child. He
said he did not realize what he is doing at these times, he goes "senile."

¶8. Friley said that he only struck the child on the hands or her bottom. He admitted to leaving bruises "on
her butt and her hands," but places the blame for his daughter's other injuries on Buffington. Friley testified
that Buffington whipped their little girl everyday with either a belt or a dog collar. He saw Buffington throw
the child against the wall on at least two occasions. Friley witnessed his daughter being spanked after
Buffington had placed her on her back and thrown her legs over her head. According to Friley, Buffington
has kicked her in the head too. The reasons for these punishments were varied - the child would not eat,
sleep or respond to attempts to potty-train her. Friley also claims that the child's hair loss was caused by
Buffington shaving the child's head when she contracted lice.

      Buffington's version

¶9. At trial Buffington admitted to spanking her daughter, but only "just a tap" with her hand that never left a
bruise that she noticed. However, in her statement to the sheriff's department, Buffington said she might
have hit the child too hard and given her a bruise or two though she did not realize it at the time. At one
point Buffington stated that she "had been the only one that whupped [sic]" the child. Later, in the same
statement, she asserted that Friley hit their child as well. When asked why she never called the police or
Friley's probation officer when he was abusive to her or the children, Buffington said she was scared of him
because he was so aggressive. However, during cross-examination, she said that sometimes when she
threatened to call Friley's probation officer, he calmed down.

¶10. Buffington asserted that on the night of November 1, 1999, she was awakened by the child's crying.
Friley had laid the child across the bed naked and was beating her with a belt. Buffington saids she pushed
Friley off of their daughter and that when she put the child's clothes on her, "she had red marks up and
down her legs, on her back, on her buttocks." She was not sure which red marks were made by Friley. The
next morning when she was dressing the child, Buffington saw several bruises starting to appear.

¶11. Buffington admitted that she had seen bruises on the child prior to this time and that she and Friley
have both "whupped" [sic] the child. She said that she gave the child food and fluid whenever the child
asked for them as well as preparing regular meals. However, the child was going through a phase in which
she would drink lots of fluids, but not eat very much. Buffington asked her daughter to eat, but could not
force her to do so. Rather than attribute the child's hair loss to malnutrition, Buffington contends that Friley
shaved the child's head because she had lice.

                                                DISCUSSION

      I. WHETHER THE USE OF THE TERM "TEMPORARY DISFIGUREMENT" AS THE
      SOLE BASIS FOR DETERMINING WHAT CONSTITUTES A "SERIOUS BODILY
      INJURY" IN A FELONY CHILD CONVICTION IS UNCONSTITUTIONALLY OVER-
      BROAD, ILL-DEFINED AND VAGUE, SO AS TO VIOLATE THE DUE PROCESS AND
      EQUAL PROTECTION CLAUSES OF THE STATE OF MISSISSIPPI AND UNITED
      STATES CONSTITUTIONS.

¶12. The statute which governs felony child abuse reads as follows:

      Any person who shall intentionally (a) burn any child, (b) torture any child or, (c) except in self-
      defense or in order to prevent bodily harm to a third party, whip, strike or otherwise abuse or mutilate
      any child in such a manner as to cause serious bodily harm, shall be guilty of felonious abuse and/or
      battery of a child and, upon conviction, may be punished by imprisonment in the penitentiary for not
      more than twenty (20) years.

Miss. Code Ann. § 97-5-39(2) (2000).

¶13. The question which has often arisen since the adoption of this statute is what constitutes "serious bodily
harm." A plurality of this Court most recently concluded that "[s]erious bodily harm," as it pertains to this
section, means bodily injury that creates a substantial risk of death, or permanent or temporary
disfigurement, or impairment of any bodily organ or function. Wolfe v. State, 743 So.2d 380, 385 (Miss.
1999). Prior to Wolfe, only permanent disfigurement was found sufficient to prove felony child abuse.

¶14. In the present case, Brittany's injuries consisted of bruises and abrasions. The doctor did not find any
broken bones or internal damage. Buffington argues that these bruises are not enough evidence to convict
her under this statute. It is clear, however, in this case that the bruises were not the result of a "well-
deserved spanking." The exhibits do not show a few superficial bruises from a spanking or two, rather they
show a little girl who is covered from one end of her body to the other with bruises of varying ages and
whose hair is falling out in patches due to malnourishment. Buffington admitted in her testimony that she "hit
[the child] too hard." Other testimony describes Buffington beating her two-year old daughter with her
hand, a belt and a dog collar, slapping her, kicking her in the head and throwing her against a wall.

¶15. The Wolfe plurality stated that the controlling statute is not so "overly broad, ill-defined and vague, so
as to violate the due process and equal protection clauses of the State of Mississippi and the United States
Constitutions." The child's parents knew that their actions were wrong. Buffington further complains that the
trial court utilized an inappropriate standard in defining felony child abuse. She argues that Wolfe was a
plurality decision, and thus has no precedential value. It is true that a majority of all sitting judges is required
to create precedent, and therefore, it follows that a plurality vote does "not create a binding result."
Churchill v. Pearl River Basin Dev. Dist., 619 So.2d 900, 904 (Miss.1993) (citation omitted). We
find that the definition initially set forth in Yates v. State, 685 So. 2d 715 (Miss. 1996), is not appropriate
when considering child abuse. Yates is thus overruled. Rather, as we stated in Wolfe, the definition
provided in Yates, while appropriate in aggravated assault cases, is "highly problematic due to the
heightened level of vulnerability inherent in victims of child abuse." Wolfe, 743 So. 2d at 385. Today this
Court holds that serious bodily harm means "bodily injury which creates a substantial risk of death, or
permanent or temporary disfigurement, or impairment of any function of any bodily organ or function,"and
thus, we find that the standard espoused in Wolfe is an appropriate definition of "serious bodily harm." Id.
We do so noting that this is the definition provided for in § 4f of the Model Child Protection Act of the
National Center on Child Abuse and Neglect (1977). Id. at 384.

¶16. As stated in Wolfe, "[i]t is important to note...that this Court's decision...should in no way be
construed as an attempt to prevent parents, teachers and other custodians involved in child care from
properly disciplining their children. As long as the discipline is moderate and reasonable in light of the age
and condition of the child, and other surrounding circumstances, the parent or custodian will not incur
criminal liability." Id. In other words, "temporary disfigurement" will not be met by a few bruises. In fact, the
trial court gave Jury Instruction D-8A, which advised the jury that they should find Buffington not guilty if
they found discipline was administered to the child and that it was done so in a moderate and reasonable
fashion.

¶17. We note also that the trial court gave Jury Instruction D-7, which allowed the jury to find, if the
evidence warranted, the lesser charge of contributing to the neglect or abuse of a child. The form of verdict
Jury Instruction S-5 also provided for such lesser offense as a possible verdict of the jury. As observed
previously, in the case at bar there was testimony that the child had been thrown against the wall more than
once and hit with belts and dog collars. She was covered with bruises from head to toe, her hair was falling
out in patches, and she had cuts and scratches on her face and body. This was not a case involving just a
few bruises, but rather was a severe case, which clearly meets the established felony criteria.

¶18. Thus, while the standard given by the trial judge was based on the Wolfe plurality decision, there was
no error as we find that standard to be correct. Viewing the jury instructions as a whole, the jury was
adequately instructed regarding felony child abuse, the lesser offense of abuse, and a possible not guilty
verdict due to moderate or reasonable discipline being administered to the child. Further, upon review of the
record below, this Court finds that Buffington's actions qualify as felony child abuse under either the Yates
or Wolfe standard.
      II. WHETHER THE TRIAL COURT ERRED IN FAILING TO TOTALLY DISALLOW
      THE TESTIMONY OF JERRY FRILEY WHO (A) WAS A CO-INDICTEE, AND (B)
      ADMITTED PERJURY REGARDING MATERIAL ELEMENTS OF THE STATE'S
      CASE. AND, IF SUCH TESTIMONY WAS PROPERLY ALLOWED, DID THE COURT
      DULY INSTRUCT THE JURY REGARDING THE PERJURY?

¶19. Jerry Friley committed perjury. This is admitted by all parties involved. Buffington raises this as an
issue and states that Friley's testimony should have been disallowed because of it. However, Buffington
never raises this issue in her argument. She gives no facts, cases or other law to show why the judge abused
his discretion by allowing the jury to consider Friley's testimony. The trial court judge is given great
deference in evidentiary matters, and his findings will not be overturned by this Court unless abuse of
discretion can be shown. Eskridge v. State, 765 So.2d 508, 510 (Miss. 2000). In light of Buffington's
lack of argument on this issue and because the judge gave a limiting instruction, we affirm the trial court's
holding.

¶20. As a secondary part of this issue, Buffington alleges that the circuit court failed to properly instruct the
jury as to the seriousness of Friley's perjury. The trial court gave an instruction asserting that Friley had
admitted his guilt, his testimony was to be "weighed with great care and caution []" and that his testimony
could be completely disregarded.

¶21. While it is true that Friley was a co-indictee and that he committed perjury concerning key facts, the
parties had separate trials and the key facts were relevant to his guilty plea, not Buffington's trial. As far as
the allegations of Friley testifying against Buffington in order to avoid a habitual offender sentence and his
need for psychiatric care, these go to the credibility of the witness. The trial court admonished the jury about
the credibility of witness testimony on more than one occasion.

¶22. The trial court properly allowed the testimony of Jerry Friley and properly instructed the jury as to his
admitted perjury. Buffington's claim of error is without merit.

      III. WHETHER, UNDER MISS. ANN. CODE § 97-5-39(2), ACTS OF OMISSION
      RATHER THAN COMMISSION ARE ADEQUATE TO FORM A PROPER BASIS FOR
      FELONY CHILD ABUSE.

¶23. Buffington claims that Miss. Code Ann. § 97-5-39(1) covers all acts of commission, and that § 97-5-
39(2) therefore covers only intentional actions. Thus, she claims that the trial court erred in allowing the jury
to consider "allowing [the child] to become dehydrated and malnourished" to be an appropriate basis for a
felony conviction under § 97-5-39(2). It is true that § 97-5-39(1) states in part that "[a]ny parent, guardian
or other person who willfully commits any act or omits the performance of any duty...shall be guilty of a
misdemeanor..." Miss. Code Ann. § 97-5-39(1). Thus, it clearly contemplates acts of omission that result in
"the abuse and/or battering of any child, as defined in Section 43-21-105(m) of the Youth Court Law" as
misdemeanor crimes. See Miss. Code Ann. § 97-5-39(1). There is, however, no language that designates
all acts of omission to be misdemeanor offenses.

¶24. Miss. Code Ann. § 97-5-39 (2) states:

      Any person who shall intentionally (a) burn any child, (b) torture any child or, (c) except in self-
      defense or in order to prevent bodily harm to a third party, whip, strike or otherwise abuse or
      mutilate any child in such a manner as to cause serious bodily harm, shall be guilty of felonious abuse
      and/or battery of a child and, upon conviction, may be punished by imprisonment in the penitentiary
      for not more than twenty (20) years.

Miss. Code Ann. § 97-5-39(2) (2000) (emphasis added). We find that the term "otherwise abuse" is a
clear indicator that the list provided is not exhaustive. Certainly, failure to feed, nourish, or provide medical
care to a child can be intentional, and such a refusal may cause serious bodily harm. In fact, the very
language of § 97-5-39(1) signals the Legislature's inclusion of even acts of omission as abusive behavior.
This Court explained in Faraga v. State, 514 So. 2d 295, 303 (Miss. 1987), that the purpose of § 97-5-
39 is to protect the child. Buffington's interpretation of this statute would allow one to refuse to feed a child
until the brink of death, yet the omission, intentional or negligent, could be charged only as a misdemeanor.
This would not serve the purpose behind the statute.

¶25. We find that the jury was properly instructed on this issue. The trial court did not err in holding that
acts of omission are adequate to constitute felony child abuse. This allegation of error is without merit.

                                               CONCLUSION

¶26. Based on the evidence and law presented, the definition of "serious bodily injury" in felony child abuse
cases is not overly broad or vague as to violate the due process and/or equal protection clauses of the State
of Mississippi and the United States Constitutions. The trial judge also properly admitted the testimony of
Friley along with a suitable limiting instruction. Further, the court did not err in declaring that acts of
omission are sufficient to constitute felony child abuse. The judgment of the circuit court is affirmed.

¶27. CONVICTION OF FELONIOUS CHILD ABUSE AND SENTENCE OF TWENTY (20)
YEARS IN THE CUSTODY OF MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH
SEVEN (7 )YEARS SUSPENDED AND FIVE (5) YEARS OF POST-RELEASE SUPERVISION,
WITH CONDITIONS, AFFIRMED.

      PITTMAN, C.J., WALLER, COBB, DIAZ, EASLEY, CARLSON AND GRAVES, JJ.,
      CONCUR. McRAE, P.J., CONCURS IN RESULT ONLY.

1. Friley had two previous felony convictions, giving him habitual offender status. In order to avoid a life
sentence, Friley gave a statement implicating Buffington in the alleged abuse of their child. Buffington was
granted a severance on February 16, 2000.
