#26231-a-GAS

2012 S.D. 87

                             IN THE SUPREME COURT

                                   OF THE

                           STATE OF SOUTH DAKOTA

                                    ****
STATE OF SOUTH DAKOTA,                       Plaintiff and Appellee,

      v.

CASEY R. MORGAN,                             Defendant and Appellant.

                                    ****

                  APPEAL FROM THE CIRCUIT COURT OF
                    THE SEVENTH JUDICIAL CIRCUIT
                  PENNINGTON COUNTY, SOUTH DAKOTA

                                    ****

                    THE HONORABLE JOHN J. DELANEY
                             Retired Judge

                                    ****


MARTY J. JACKLEY
Attorney General

KIRSTEN E. JASPER
Assistant Attorney General
Pierre, South Dakota                         Attorneys for plaintiff
                                             and appellee.

MITCHELL D. JOHNSON
Rapid City, South Dakota                     Attorney for defendant
                                             and appellant.

                                    ****
                                             ARGUED NOVEMBER 6, 2012

                                             OPINION FILED 12/05/12
#26231

SEVERSON, Justice.

[¶1.]        On the morning of January 26, 2011, Casey Morgan was caring for

K.N., the daughter of his fiancée, Mary Lindley, and D.M., the son of Morgan and

Lindley. K.N. and D.M. were arguing over a book that K.N. was assigned to read as

homework. Morgan heard the children arguing and grabbed K.N., forcefully

squeezed and held her face, and yelled at her. Then Morgan took K.N. to school. At

school, K.N. was crying and explained to her teacher why she was upset. Later in

the morning, bruising developed on K.N.’s face and her teacher reported the

incident to the school principal. After being notified by the school principal, the

school’s liaison police officer reported the incident to the South Dakota Department

of Social Services. K.N. was taken into protective custody after a trip to the

emergency room. Morgan was later charged with and found guilty of aggravated

child abuse. Morgan appeals, arguing that the verdict is not sustained by the

evidence. Viewed in the light most favorable to the verdict, there was sufficient

evidence to support Morgan’s conviction beyond a reasonable doubt. We affirm.

                                  BACKGROUND

[¶2.]        Casey Morgan was engaged to Mary Lindley. The couple’s son, D.M.,

age three, and Lindley’s daughter, K.N., age six, lived in their home and were cared

for by Morgan and Lindley. On January 26, 2011, Lindley left for work around 7:00

a.m., leaving Morgan to get the children ready for daycare and school.

[¶3.]        On that morning, K.N. and D.M. argued about K.N.’s guided reading

book. D.M. took K.N.’s book and would not return the book to his sister so she could

pack her things for school. Reading the guided reading book was K.N.’s homework


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assignment, but she had not completed her assignment. Morgan heard K.N. and

D.M.’s argument and disciplined K.N. for arguing and for failing to finish her

homework. Morgan grabbed and squeezed K.N.’s face, wrapping his hand around

her chin. While squeezing K.N.’s face, Morgan yelled “What’s the rule?” a number

of times until K.N. responded that the house rule was to “do my homework.”

Morgan used enough force to cause significant bruising across K.N.’s face and neck,

a contusion on K.N.’s upper lip and on the inside of her mouth because her lips were

forced against her teeth, ecchymoses (a type of bruising), a swollen lip, and a

subconjunctival hemorrhage (broken blood vessels) in one of K.N.’s eyes.

[¶4.]        After Morgan disciplined K.N., he took her to school. When K.N.

arrived at school, she was crying, sobbing, and having difficulty breathing. K.N.

went to the school’s office to get lip salve for her lips. When she arrived at her first

grade classroom, K.N.’s teacher saw that K.N. was crying and sobbing and had a

swollen upper lip. K.N.’s teacher asked K.N. to come to her desk in the back of the

classroom. The teacher asked K.N. what happened and K.N. stated that Morgan

was mad at her and had “squeezed” her face. K.N. demonstrated what happened by

grabbing her own face and told her teacher that Morgan asked K.N. “What’s the

rule?” several times while squeezing K.N.’s face.

[¶5.]        Later in the morning, K.N.’s teacher noticed red and purple bruises

developing on K.N.’s face and along her jawline and chin. K.N.’s teacher contacted

the school’s office and requested that Principal Patricia Hamm come to her class.

When Principal Hamm arrived at K.N.’s classroom, K.N.’s teacher reported her

conversation with K.N.


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[¶6.]          Principal Hamm contacted the school’s liaison police officer, Trevor

Tollman. Hamm and Tollman met with K.N. and K.N. relayed the events of the

morning. After meeting with K.N., Tollman travelled to Lindley’s workplace and

suggested to Lindley that K.N. see a doctor. Lindley could not leave work to take

K.N. to the doctor. Tollman did not believe that Lindley would take K.N. to the

doctor after her workday ended, so he contacted the South Dakota Department of

Social Services, initiating the process to take K.N. and her brother, D.M., into

protective custody.

[¶7.]          Trista Depurdy from the Department of Social Services met K.N. at

the school and took her to the Rapid City Regional Hospital for an examination.

K.N. was examined by Dr. John Hill. Dr. Hill asked K.N. about the bruises and

K.N. stated that someone grabbed her face. Dr. Hill determined that the

explanation fit K.N.’s injuries and the bruising indicated that a hand and fingers

wrapped around her face. He testified at trial that if K.N.’s face “was being

squeezed, it was being squeezed pretty hard.” Dr. Hill found a contusion on K.N.’s

upper lip and on the inside of her mouth, which was likely caused by compression

between a force and K.N.’s teeth. Dr. Hill also noted ecchymoses, a swollen lip, and

a subconjunctival hemorrhage in one of K.N.’s eyes. Dr. Hill determined that K.N.’s

injuries were caused by a significant amount of force.

[¶8.]          Morgan was later indicted and arrested on a charge of aggravated

child abuse.

[¶9.]          On October 3 and 4, 2011, the trial court held a jury trial. The jury

found Morgan guilty of aggravated child abuse. The trial court sentenced Morgan


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to 15 years in the state penitentiary as a habitual offender, with 10 years

suspended. Morgan appeals, arguing that the verdict is not sustained by the

evidence and his actions were permissible discipline.

                              STANDARD OF REVIEW

[¶10.]       Claims of insufficient evidence are “viewed in the light most favorable

to the verdict.” State v. Beck, 2010 S.D. 52, ¶ 7, 785 N.W.2d 288, 292 (citing State v.

Carter, 2009 S.D. 65, ¶ 44, 771 N.W.2d 329, 342). See also State v. Janklow, 2005

S.D. 25, ¶ 16, 693 N.W.2d 685, 693. “The question is whether ‘there is evidence in

the record which, if believed by the fact finder, is sufficient to sustain a finding of

guilt beyond a reasonable doubt.’” Beck, 2010 S.D. 52, ¶ 7, 785 N.W.2d at 292

(quoting Carter, 2009 S.D. 65, ¶ 44, 771 N.W.2d at 342). See also State v. Buchholz,

1999 S.D. 110, ¶ 33, 598 N.W.2d 899, 905. We will not “resolve conflicts in the

evidence, assess the credibility of witnesses, or reevaluate the weight of the

evidence.” Beck, 2010 S.D. 52, ¶ 7, 785 N.W.2d at 292 (citing Carter, 2009 S.D. 65, ¶

44, 771 N.W.2d at 342). “‘If the evidence, including circumstantial evidence and

reasonable inferences drawn therefrom sustains a reasonable theory of guilt, a

guilty verdict will not be set aside.’” Id. (quoting Carter, 2009 S.D. 65, ¶ 44, 771

N.W.2d at 342).

                                      ANALYSIS

[¶11.]       Aggravated child abuse is prohibited under SDCL 26-10-1. Section 26-

10-1 provides in part, “[a]ny person who abuses, exposes, tortures, torments, or

cruelly punishes a minor in a manner which does not constitute aggravated assault,

is guilty of a Class 4 felony. If the victim is less than seven years of age, the person


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is guilty of a Class 3 felony.” SDCL 26-10-1 also allows a person to assert an

affirmative defense, based on the use of reasonable force to discipline a child. A

parent, parent’s authorized agent, or guardian of a child* may use reasonable force

to correct the child “if restraint or correction has been rendered necessary by the

misconduct of the child . . . or by the child’s refusal to obey the lawful command of

such parent, or authorized agent, [or] guardian, . . . and the force used is reasonable

in manner and moderate in degree.” SDCL 22-18-5.

[¶12.]         By allowing a defense of reasonable force in child abuse cases, the

Legislature determined “that corporal punishment will not be absolutely prohibited,

nor will it be allowed in all instances with any amount of force a parent decides to

use.” In re C.F., 2005 S.D. 126, ¶ 25, 708 N.W.2d 313, 318. In this case, the trial

court gave the jury Instruction No. 1, part 8, which states:

               Permissible Discipline. The use or attempted use of force upon a
               child is not unlawful if committed by a parent or the authorized
               agent of a parent in the exercise of a lawful authority to restrain
               or correct the child if the force has been rendered necessary by
               the misconduct of the child, or by the child’s refusal to obey the
               lawful command of the parent or the parent’s authorized agent,
               and the force used is reasonable in manner and moderate in
               degree.

[¶13.]         Morgan argues that K.N.’s bruises and injuries were not severe and

long-lasting and are not as traumatic as the injuries received by other children in


*        In order for the parental discipline privilege to apply, SDCL 22-18-5 requires
         that the person administering the discipline must be a parent, authorized
         agent of a parent, guardian of the child, or teacher or school official. In this
         case, there was no discussion by Morgan or the State as to whether Morgan
         was an authorized agent or guardian of K.N. Thus, we do not address this
         issue on review.



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other child abuse cases in South Dakota. See Beck, 2010 S.D. 52, 785 N.W.2d 288;

State v. Well, 2000 S.D. 156, 620 N.W.2d 192; State v. Augustine, 2000 S.D. 93, 614

N.W.2d 796; State v. Hoffman, 430 N.W.2d 910 (S.D. 1988); State v. Eagle Hawk,

411 N.W.2d 120 (S.D. 1987). Thus, Morgan argues he is not guilty of aggravated

child abuse. However, we review the record to determine if there is sufficient

evidence to support the jury’s guilty verdict beyond a reasonable doubt.

[¶14.]       The jury was instructed that the State must prove, beyond a

reasonable doubt, the essential elements of aggravated child abuse. The

instructions stated that the elements were (1) “on or about January 26, 2011, in

Pennington County,” (2) “Mr. Morgan abused, exposed, tortured, tormented or

cruelly punished K.N.,” and (3) “K.N. was then less than 7 years of age.” The

instructions also contained definitions of “proof beyond a reasonable doubt,”

“evidence,” “abuse,” “expose,” “torture,” “torment,” and “cruelly punish.” As noted

above, the jury was also instructed on permissible discipline. Morgan did not object

to the jury instructions or propose alternative jury instructions.

[¶15.]       It was established at trial that K.N. was six years old on January 26,

2011. It was also established that Morgan was caring for K.N. at the time of the

incident. Lindley testified that K.N. was not injured when she left to go to work

that morning. K.N. testified that Morgan grabbed and squeezed her face after

finding her arguing with her brother over her guided reading book. Dr. Hill

testified that K.N.’s explanation fit her injuries. Dr. Hill also stated that if K.N.’s

face “was being squeezed, it was being squeezed pretty hard.” Other witnesses

testified about K.N.’s bruising and her emotional and physical state on the day of


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the incident, and the consistency of her statements throughout the day. There was

evidence that Morgan used a significant amount of force—enough to cause extensive

bruising across K.N.’s face and neck, a contusion on K.N.’s upper lip and on the

inside of her mouth, ecchymoses, a swollen lip, and a subconjunctival hemorrhage in

one of K.N.’s eyes. Evidence was presented from which the jury could find that

Morgan’s actions, grabbing and squeezing K.N.’s face, were not permissible

discipline. The evidence presented and the natural inferences that may be drawn

from it “‘sustains a reasonable theory of guilt.’” State v. Shaw, 2005 S.D. 105, ¶ 19,

705 N.W.2d 620, 626 (quoting Buchholz, 1999 S.D. 110, ¶ 33, 598 N.W.2d 899, 905).

                                   CONCLUSION

[¶16.]       There is sufficient evidence in this case to support the jury verdict

finding Morgan guilty of aggravated child abuse beyond a reasonable doubt. We

affirm Morgan’s conviction.

[¶17.]       GILBERTSON, Chief Justice, and KONENKAMP, ZINTER, and

WILBUR, Justices, concur.




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