Bountiful City v. Baize , 2021 UT 9 ( 2021 )

2021 UT 9IN THE
SUPREME COURT OF THE STATE OF UTAH
BOUNTIFUL CITY,
Respondent,
v.
NATHAN DAVID BAIZE,
Petitioner.
No. 20190319
Heard September 11, 2020
Filed April 8, 2021
On Certiorari to the Utah Court of Appeals
Second District, Bountiful
The Honorable Glen R. Dawson
No. 161800370
Attorneys:
Yvette Donosso, Bountiful, for respondent
Scott L. Wiggins, Salt Lake City, for petitioner
JUSTICE PEARCE authored the opinion of the Court, in which
CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,
JUSTICE HIMONAS, and JUSTICE PETERSEN joined.
JUSTICE PEARCE, opinion of the Court:
INTRODUCTION
¶1 After hours of unsuccessful attempts to calm his four-year-
old who was throwing a series of temper tantrums, Nathan Baize
spanked his son three times. During the tantrums, Baize’s son kicked
Baize and hit him in the face. The child also kicked and punched his
grandmother. Baize later told a police detective that he spanked his
son as a “last resort.” Evidence at trial showed that Baize struck his
son with enough force to leave bruises in the shape of a handprint on
the child’s bottom that were visible two days later.
BOUNTIFUL CITY v. BAIZE
Opinion of the Court
¶2 Bountiful City charged Baize with child abuse under Utah
Code section 76-5-109(3)(c). That provision makes it a class C
misdemeanor to “inflict[] upon a child physical injury” with
“criminal negligence.” The district court convicted Baize after a
bench trial.
¶3 Baize appealed and argued before the court of appeals that
the district court had misconstrued and misapplied the law.
Specifically, Baize argued that the district court had failed to
properly consider whether Baize’s discipline could be considered
“reasonable discipline” by a parent—conduct which is exempted
from the statute’s reach under certain circumstances. Bountiful City v.
Baize, 2019 UT App 24, ¶¶ 17–21, 438 P.3d 1041; see also UTAH CODE
§ 76-5-109(8). Baize alternatively argued that his trial counsel
rendered ineffective assistance of counsel by failing to raise the
“reasonable discipline” defense. Baize, 2019 UT App 24, ¶ 16. The
court of appeals rejected both of Baize’s arguments and affirmed
Baize’s conviction. Id. ¶¶ 30–31.
¶4 Baize petitioned for certiorari. Before us, Baize contends the
court of appeals erred by misconstruing and misapplying the law in
a way that “essentially establishes a rule that any spanking by a
parent that leaves a bruise” on the child constitutes “child abuse
under the Statute.”
¶5 We disagree with Baize about what the court of appeals
held. The court of appeals correctly recognized that although a
parent “may be convicted of child abuse when he causes physical
injury to a child, including bruising,” the statute also provides
parents with a defense if the injury was not “serious” and “the
conduct in question constituted reasonable discipline.” Baize, 2019
UT App 24, ¶¶ 20–21; see also UTAH CODE § 76-5-109(3), (8); id. § 76-2-
401.
¶6 Even though we endorse the court of appeals’ construction
of the statute, we conclude the court of appeals erred in determining
it was “clear from the record” that the district court applied and
correctly analyzed the statute’s “reasonable discipline” provision.
Baize, 2019 UT App 24, ¶¶ 22–23. We do not see the same clarity that
the court of appeals did. We therefore vacate Baize’s conviction and
remand to the district court to enter findings about whether the
discipline that Baize meted upon his son was “reasonable
discipline.”
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BACKGROUND
Facts1
¶7 Baize had his four-year-old son (Son) for weekend parent-
time. See Bountiful City v. Baize, 2019 UT App 24, ¶ 2, 438 P.3d 1041.
Son acted up and threw multiple temper tantrums. Id. ¶¶ 3–4. Son’s
mother (Mother) testified that Baize had emailed her and that the
emails indicated Son had been “yelling and screaming.” See id. ¶ 3.
Son “was saying terrible things, he was going to hurt people. He was
mad. He wanted to go home. He was upset. Completely distraught.”
Id. ¶ 3. A Bountiful City Police Department detective (Detective)
similarly testified that, based on his interview with Baize, Son was
“out of control,” “throwing temper tantrums, using foul language,
[and] saying that he wanted [Baize] dead. . . .”
¶8 One of Son’s tantrums occurred in a grocery store parking
lot. According to Detective, when Baize came out of the store, Baize
found Son “kicking and punching his grandmother,” who was with
Son in a parked car. Son also repeatedly “jump[ed] up and down,
‘slamming his rear end on the bottom of the car seat.’” Id. (quoting
Detective). The tantrum continued for approximately an hour until
Son calmed down enough that Baize could strap the child into his
car seat. Id.
¶9 But the reprieve from Son’s tantrums proved temporary.
Once they returned home, Son resumed fighting with Baize. Id. ¶ 5.
Baize told Detective that he tried various disciplinary interventions.
This included talking to Son, putting him in a corner, and
“everything but physical force.” Finally, “the only thing . . . [Baize]
thought would help would [be to] spank [Son].” Baize then put Son
“over his knee and warned him that he was going to be spanked
unless he calmed down.” Baize, 2019 UT App 24, ¶ 5. Son “continued
to swear and tell Baize that he hated him.” Id. Baize then spanked
Son on his bottom. Son continued his tantrum. Baize warned Son
again. And then he spanked Son a second and third time. Id. Baize
told Detective the spanking was a “last resort.” Id.1 We recite a number of facts the court of appeals included in its
opinion. See Bountiful City v. Baize, 2019 UT App 24, ¶¶ 3–9, 438 P.3d
1041. We also insert additional facts from the trial court record. We
cite to the court of appeals’ opinion when we borrow from it.
Uncited references come from the trial court proceedings.
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BOUNTIFUL CITY v. BAIZE
Opinion of the Court
¶10 The morning after the incident, Baize called Mother and
asked that she pick up Son hours earlier than planned. Id. ¶ 6. That
evening, Mother noticed bruising on Son’s bottom. Id. Son told
Mother what had happened. Id. Mother then called the Division of
Child and Family Services (DCFS). Id.
¶11 The following day (two days after the incident), a DCFS
investigator came to see Mother and advised her to call the police. Id.
¶ 8. She did. That same day, Mother took photographs of the
bruising. Id. ¶ 7.
¶12 Thereafter, Detective arranged for Son to be interviewed at
the Children’s Justice Center. Id. ¶ 8. After seeing Mother’s
photographs and hearing Son’s interview, Detective interviewed
Baize. Id.
District Court Arguments and Conviction
¶13 Bountiful City charged Baize with a class C criminal
misdemeanor of child abuse under Utah Code section 76-5-109(3)(c)2
for “inflict[ing] upon a child physical injury”3 with “criminal
2 We cite the current version of the statute, as there have been no
substantive changes to the subsections pertinent to the allegations in
this case since the incident occurred in 2016. Although portions of
section 76-5-109 of the Utah Code were amended in 2017, those
amendments affected only the definition of “serious physical injury,”
specifically relating to impediments to a child’s breathing or blood
circulation or unconsciousness. See H.B. 17, 2017 Utah Laws 2198–
2220 (amending UTAH CODE § 76-5-109(1)(f)(ii)(I) and adding § 76-5-
109(1)(f)(ii)(K)). The definitions of “physical injury,” UTAH CODE
§ 76-5-109(1)(e), and the charged offense, id. § 76-5-109(3)(c), are the
same in the current code as they were in 2016.
3 The statute defines “physical injury” as:
an injury to or condition of a child which impairs the
physical condition of the child, including: (i) a bruise or
other contusion of the skin; (ii) a minor laceration or
abrasion; (iii) failure to thrive or malnutrition; or (iv)
any other condition which imperils the child’s health or
welfare and which is not a serious physical injury. . . .
Id. § 76-5-109(1)(e).
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negligence.”4 Id. ¶ 10. Baize pled not guilty and requested a bench
trial. Id.
¶14 Mother testified that she saw “bruising, fingerprints . . . lines
on [Son’s] bottom, bruising . . . [and] little spots on his bottom that
are bruised.” Id. ¶ 7. Mother’s photograph of the bruising was
introduced into evidence without objection. Mother testified that the
images accurately portrayed Son’s bruising. Id.
¶15 Detective similarly testified that the photograph depicted
bruising in the shape of “a finger or a handprint,” as well as other
bruising and redness consistent with diaper rash. Id.¶ 9. Detective
presumed that Son “slamming his butt up and down into the car
seat” was the cause of the additional bruising. Detective testified that
he was unaware of any reports that Son required medical attention
for the redness and bruising. Baize, 2019 UT App 24, ¶ 9. Mother
confirmed that Son required no medical attention.
¶16 Baize’s trial counsel argued that spanking Son “was not a
gross deviation from the standard of care based on [the] facts [and]
specific evidence that [was introduced].”5 Id. ¶ 12 (second and third
alteration in original). He also argued that Baize “did not take an
unjustifiable risk to cause bruising.” Id. Baize’s counsel emphasized
the circumstances leading up to the incident, including that Son
“kicked and punched” his grandmother, caused bruising to himself
by jumping up and down in his car seat, and engaged in
“[t]hreatening behavior, hitting, yelling.” The spanking, counsel
explained, was the only tool Baize had left “as a parent” after
exhausting other options. Baize, 2019 UT App 24, ¶ 12. Moreover, it
was done in a “controlled manner,” was “not done out of anger,”
4 Under Utah Code section 76-2-103(4):
A person engages in conduct . . . [w]ith criminal
negligence or is criminally negligent with respect to
circumstances surrounding his conduct or the result of
his conduct when he ought to be aware of a substantial
and unjustifiable risk that the circumstances exist or the
result will occur. The risk must be of a nature and
degree that the failure to perceive it constitutes a gross
deviation from the standard of care that an ordinary
person would exercise in all the circumstances as
viewed from the actor’s standpoint.
5 Baize’s trial counsel does not represent Baize on appeal.
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Opinion of the Court
was designed “to help the child calm down and get under control,”
and stopped when Baize “thought that was enough.” Id.¶17 Baize’s trial counsel never expressly argued that Baize’s
spanking was “reasonable discipline.” Nor did he expressly argue it
fit into any other defense or justification in Utah Code section 76-5-
109(8)6 or 76-2-401.7 Instead, Baize’s trial counsel argued that the
spanking, under the circumstances, “was not a gross deviation from
the standard of care” and was not “an unjustifiable risk.” Baize, 2019
UT App 24, ¶ 12.
¶18 The City acknowledged that it is not “illegal or wrong” for
parents to discipline their children, including by spanking. Id. ¶ 11.
Nevertheless, the City repeatedly pushed for a rule that “when you
spank a child to the point where there is physical injury . . . you
come to a Class C misdemeanor child abuse.” Id. The law “clearly
states,” the City asserted, that it “is a violation when you leave
physical injury [and] that’s always going to be a gross deviation.
Parents aren’t supposed to leave physical injury on their children.”
¶19 The City reasoned that “any parent,” including Baize,
“should be aware that there may be bruising, that they may injure a
child. They are putting their hands on a child. It’s obvious to all of us
that there’s a risk that they may injure the child if they spank the
child too hard.” The City explained that Baize could have remained
within the confines of the law “[i]f he was being extra cautious” and
“spanked him much more lightly to the point where there was no
6 Utah Code section 76-5-109(8) provides:
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; (b) conduct described in Section 76-2-401; or
(c) the use of reasonable and necessary physical
restraint or force on a child: (i) in self-defense; (ii) in
defense of others; (iii) to protect the child; or (iv) to
remove a weapon in the possession of a child. . . .”
7 Utah Code section 76-2-401(1)(c) provides that the “defense of
justification may be claimed . . . when the actor’s conduct is
reasonable discipline of minors by parents, guardians, teachers, or
other persons in loco parentis. . . .” This defense is “not available if
the offense charged involves causing . . . serious physical injury. . . .”
UTAH CODE § 76-2-401(2).
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bruising.” The City concluded: “it’s a matter of degree. And this is
the lowest degree. It’s just stepping over the line of the criminal code
instead of parenting.”
¶20 The City repeatedly argued that Son’s “behavior really
doesn’t matter in the scheme of things.” “It comes down to the fact
that while disciplining his child [Baize] left a handprint on [Son],
bruised him. . . . That’s it.” Baize, 2019 UT App 24, ¶ 11.
¶21 The district court began its analysis by reading aloud the
definition of the relevant mens rea for the class C misdemeanor at
issue—“criminal negligence.” See UTAH CODE § 76-2-103(4). The
court read: “[a] person engages in conduct with criminal negligence
. . . when he ought to be aware of [a] substantial and unjustifiable
risk that . . . the result would occur” and when that risk is of a
“degree” that failure to perceive it “constitutes [a] gross deviation of
the standard of care that an ordinary person would exercise in all of
the circumstances,” as viewed from the defendant’s standpoint.
¶22 The district court again displayed its fixation with the mens
rea when it interrupted the City’s closing argument. The prosecutor
had begun to say that, in this case, “the focus of course should be
. . . .” The court interjected: “The mens rea.” The City then added:
“The mens rea and the injuries.” Neither the court nor the City
mentioned the reasonableness or unreasonableness of the parental
discipline.
¶23 Following both parties’ presentations and closing
arguments, the district court clarified what it perceived to be the
statutory provisions relevant to the crime charged:
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
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Opinion of the Court
physical injury, but I’m just going to stop there for
purposes of this case.
Baize, 2019 UT App 24, ¶ 13 (emphases added). The district court did
not, in its narration of the “pertinent part[s]” of the statute, read
from or cite any defense or justification in sections 76-5-109(8) or 76-
2-401 of the Utah Code. Nor did it use the term “reasonable
discipline” in its analysis. The court did acknowledge that “a parent
should be allowed to discipline his children in an appropriate way.”
Id. ¶¶ 13, 22. But the court also clarified, “I think [the City] has it
right. I think it’s a matter of degree.”
¶24 The court then found that “the level of contusion, the
bruising on the buttocks of the child” indicated that the spanking
“was just too hard,” and therefore the “discipline was a gross
deviation from the standard of care that an ordinary person would
exercise.” Baize, 2019 UT App 24, ¶ 13. Based on that finding and
“based on the testimony of the two witnesses,” the court concluded
there was “proof beyond a reasonable doubt” for convicting Baize of
a class C misdemeanor, for “inflicting physical injury on a child with
criminal negligence.” Id.¶25 The district court sentenced Baize to ninety days in Davis
County Jail plus a $750 fine but suspended both and ordered Baize
to serve ten days in jail with twelve months’ probation.
The Court of Appeals Affirms
¶26 With the assistance of new counsel, Baize appealed his
conviction, raising two issues before the court of appeals. First, Baize
argued that “his trial counsel deprived him of his right to effective
assistance of counsel by failing to bring the [reasonable discipline]
justification defense identified in Utah Code section 76-2-401.” Baize,
2019 UT App 24, ¶ 27. Second, “Baize claim[ed] that the district court
misinterpreted and misapplied Utah Code section 76-5-109,” by
either failing to analyze the “reasonable discipline” defense
provided in subsection 8, id. ¶¶ 15, 21, or by conducting such an
analysis without due consideration of certain common law factors
Baize deemed necessary, including the “age, condition and
disposition of the child” and the “good faith” of the parent. Id. ¶ 24.
In his court of appeals briefs, Baize acknowledged that his statutory
construction argument was raised for the first time on appeal,
arguing that the court of appeals should nevertheless address it
under the “plain error” exception to preservation rules.
¶27 The court of appeals rejected both of Baize’s arguments and
affirmed the district court’s decision. Id. ¶¶ 29–30. Baize’s ineffective
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assistance of counsel argument failed because the court of appeals
concluded that when Baize’s trial counsel argued Baize’s conduct
was “not a gross deviation from the standard of care,” the “counsel
effectively communicated the existence of the justification defense
without making explicit reference to the subsections of the statute.”
Id. ¶ 29. In other words, the court of appeals concluded that Baize’s
counsel had, in fact, raised the affirmative defense.
¶28 The court of appeals similarly concluded it was “clear” the
district court analyzed whether Baize’s discipline was the
“reasonable discipline” a parent can apply without criminal penalty.
Id. ¶¶ 22–23. The court of appeals pointed to the district court’s
conclusion that Baize’s “discipline was a gross deviation from the
standard of care,” which came after the district court recognized that
“[a] parent should be allowed to discipline his children in an
appropriate way.” Id. ¶ 22 (emphasis omitted) (quoting the district
court). The court of appeals reasoned that “gross deviation from the
standard of care” is “simply a variation in nomenclature describing
the concept of reasonableness,” and therefore it was unnecessary for
the district court to “explicitly invoke the numbers” of the relevant
statutory subsections or explicitly use the words “reasonable” or
“unreasonable.” Id. ¶¶ 22–23.
¶29 The court of appeals further concluded that the district
court’s analysis was adequate because nothing in the “reasonable
discipline” statutes requires an examination of the common law
factors Baize argued the district court had failed to consider. Id.
¶¶ 24–25. Finally, the court of appeals rejected Baize’s argument that
any “parental discipline resulting in mere physical injury,” as
opposed to serious physical injury, “is by definition reasonable” and
thus exempted from the crime of child abuse. Id. ¶ 25. The court of
appeals clarified that, although the reasonable discipline “defense is
available if the conduct is (1) reasonable and (2) results in only [non-
serious] physical injury,” id. ¶ 20 n.4, “inflicting something less than
serious physical injury” is neither “always reasonable” nor always
unreasonable. Id. ¶ 25.
¶30 Baize petitioned for certiorari only on the question of
“whether the court of appeals erred in its construction and
application of Sections 76-5-109 and 76-2-401(1)(c) of the Utah Code.”
Baize did not seek review of the court of appeals’ conclusion that his
counsel did not render ineffective assistance.
ISSUE AND STANDARD OF REVIEW
¶31 “On certiorari, we review the court of appeals’ decision for
correctness, focusing on whether that court correctly reviewed the
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Opinion of the Court
trial court’s decision under the appropriate standard of review.”
Cheek v. Iron Cnty. Att’y, 2019 UT 50, ¶ 9, 448 P.3d 1236 (quoting State
v. Rushton, 2017 UT 21, ¶ 9, 395 P.3d 92). The court of appeals
reviewed Baize’s statutory interpretation and application arguments
under a “plain error” standard,8 after finding Baize had not
preserved the issue at trial. Bountiful City v. Baize, 2019 UT App 24,
¶ 15, 438 P.3d 1041.9 “To demonstrate plain error, a defendant must
establish that ‘(i) [a]n error exists; (ii) the error should have been
obvious to the trial court; and (iii) the error is harmful. . . .’” State v.
Johnson, 2017 UT 76, ¶ 20, 416 P.3d 443 (alterations in original)
(citation omitted).
8If a party “failed to preserve an issue in the trial court, but seeks
to raise it on appeal . . . . the party must argue an exception to
preservation.” State v. Johnson, 2017 UT 76, ¶ 17, 416 P.3d 443. “Plain
error” is one of the exceptions that allows an appellate court to
review an argument that was unpreserved at trial. See id. ¶¶ 19–38
(detailing preservation exceptions).
9 The court of appeals applied the plain error standard of review
because Baize’s brief to the court of appeals expressly stated that his
statutory interpretation and application arguments were “raised for
the first time on appeal by way of plain error.” Baize then briefed
why the district court had erred, and why that error was obvious
and harmful.
Baize now appears to argue that he preserved his statutory
interpretation and application arguments by raising them in his
petition for a writ of certiorari, and/or by his presentation of the
issue to the court of appeals. But the fact that Baize raised those
arguments in the court of appeals and in his petition for certiorari
means that he has not waived his right to petition this court to review
the court of appeals’ resolution of those issues. It would not cure
Baize’s initial failure to preserve those issues in the district court. See
Johnson, 2017 UT 76, ¶¶ 14–17 (detailing a two-step inquiry into
(1) whether parties sufficiently raised their issues and arguments at
the trial court in order to preserve them for review by the court of
appeals; and (2) whether the parties waived their issues or arguments
by failing to raise them in the court of appeals or by failing to raise
them in their opening briefs to this court).
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ANALYSIS
I. THE STATUTORY FRAMEWORK
¶32 It is helpful to review the relevant statutory provisions
before turning to the parties’ arguments. The general rule under
Utah Code section 76-5-109 (Child Abuse Statute or Statute) is that
“[a]ny person who inflicts upon a child physical injury . . . is guilty”
of a class A, B, or C misdemeanor, depending on the mens rea with
which the defendant acted. UTAH CODE § 76-5-109(3). It is a class C
misdemeanor if the offense is “done with criminal negligence.” Id.
§ 76-5-109(3)(c).10
¶33 Utah Code section 76-5-109(1)(e) defines “physical injury” as
“an injury to or condition of a child which impairs the physical
condition of the child, including: (i) a bruise or other contusion of the
skin; (ii) a minor laceration or abrasion; (iii) failure to thrive or
malnutrition; or (iv) any other condition which imperils the child’s
health or welfare and which is not a serious physical injury. . . .”11
¶34 Utah Code section 76-2-103(4) provides that “[a] person
engages in conduct . . . [w]ith criminal negligence or is criminally
negligent with respect to circumstances surrounding his conduct or
the result of his conduct when he ought to be aware of a substantial
and unjustifiable risk that the circumstances exist or the result will
occur. The risk must be of a nature and degree that the failure to
perceive it constitutes a gross deviation from the standard of care
that an ordinary person would exercise in all the circumstances as
viewed from the actor’s standpoint.”
¶35 After describing the elements of the relevant offense in
Subsection 3, the Child Abuse Statute then provides specific defenses
in Subsection 8:
A person is not guilty of an offense under this section for
conduct that constitutes: (a) reasonable discipline or
10 Utah Code subsection 76-5-109(3)(a) makes it a class A
misdemeanor for “intentionally or knowingly” inflicting physical
injury, while Utah Code subsection 76-5-109(3)(b) makes it a class B
misdemeanor for “recklessly” doing so. Baize was charged only with
a class C misdemeanor.
11“Serious physical injury” carries its own definition in Utah
Code subsection 76-5-109(1)(f). No party here argues that “serious
physical injury” is applicable to Baize’s situation.
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Opinion of the Court
management of a child, including withholding
privileges; (b) conduct described in Section 76-2-401; or
(c) the use of reasonable and necessary physical
restraint or force on a child: (i) in self-defense; (ii) in
defense of others; (iii) to protect the child; or (iv) to
remove a weapon in the possession of a child. . . .”
Id. § 76-5-109(8) (emphases added).12
¶36 Utah Code section 76-2-401(1)(c) similarly provides that the
“defense of justification may be claimed . . . when the actor’s conduct
is reasonable discipline of minors by parents, guardians, teachers, or
other persons in loco parentis. . . .” (Emphases added.) This defense
is “not available if the offense charged involves causing . . . serious
physical injury. . . .” Id. § 76-2-401(2).
¶37 The “reasonable discipline” provisions in sections 76-5-
109(8) and 76-2-401(1)(c) are affirmative defenses, not elements of the
offense,13 and thus need only be addressed and negated by the
prosecution if “the defendant has presented evidence of such
12 Baize has only raised subsections (a) and (b) of section 76-5-
109(8).
13 Utah Code section 76-2-401(1)(c) expressly provides for the
defense of justification, which may be claimed, meaning that it is not in
play if unclaimed. And while Utah Code section 76-5-109(8) is not
expressly listed as a defense, we have held that “exemptions from
criminal statutes generally function as affirmative defenses.” State v.
Bess, 2019 UT 70, ¶¶ 30–31, 473 P.3d 157. The policy behind this
general rule is that “the defendant is better positioned to know if any
of the many possible exemptions even apply in his case,” and
construing exemptions as elements “would mean that the State
would have to disprove every exception . . . whether relevant in a
given case or not.” Id. The statutory reasoning is that Utah Code
section 76-1-501(2) defines “element of the offense” as “(a) the
conduct, attendant circumstances, or results of conduct proscribed,
prohibited, or forbidden in the definition of the offense; and (b) the
culpable mental state required.” See Bess, 2019 UT 70, ¶ 32. Here,
“reasonable discipline” is not part of the conduct that is “proscribed,
prohibited, or forbidden” in section 76-5-109 and thus is not an
element of the offense. See UTAH CODE § 76-5-109; cf. Bess, 2019 UT
70, ¶ 32 (coming to the same conclusion on a different statute with a
similar structure).
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affirmative defense.” See id. § 76-1-502(2)(b). But the fact that
something is an affirmative defense and not an element of the crime
“does not shift the burden of proof from the State to the defendant.
Rather, it means that sufficient evidence must be presented at trial to
put the affirmative defense at issue. At that point, the State must
disprove the defense beyond a reasonable doubt.” State v. Bess, 2019
UT 70, ¶ 34, 473 P.3d 157 (citations omitted).
II. THE COURT OF APPEALS DID NOT ERR IN ITS
CONSTRUCTION OF THE STATUTE
¶38 Baize first asserts that the court of appeals misconstrued the
Child Abuse Statute. Baize argues that the court of appeals’
construction “essentially establishes a rule that any spanking by a
parent that leaves a bruise is guilty of child abuse. . . .” Baize
contends that this is erroneous in two ways: (A) it runs counter to his
interpretation of the plain language of the “reasonable discipline”
provisions in subsections 76-5-109(8) and 76-2-401(1)(c) of the Utah
Code; and (B) it “unduly abrogate[s]” a “number of factors,” from
common law and the Restatement (Second) of Torts, which Baize
asserts must be considered.14
14 Bountiful City argues that Baize waived his right to have this
court review the question of whether a district court must consider
certain common law factors because Baize did not raise arguments
about some of those factors to the court of appeals, nor did he raise
those arguments at the district court. Because we reject Baize’s
contention that the district court must review any set of common law
factors, we need not sort out whether Baize’s argument about
additional factors would constitute “entirely new issues” or “entirely
distinct legal theor[ies]” from the argument Baize made to the court
of appeals that the district court needed to consider certain other
common law factors. See State v. Johnson, 2017 UT 76, ¶ 14 n.2, 416
P.3d 443. We note, however, that although “we view issues
narrowly” when examining whether an issue has been preserved or
waived, we also “routinely consider new authority relevant to issues
that have properly been” raised below. Id. (citations omitted)
(internal quotation marks omitted) (emphases removed from
original). In addition, when an issue of statutory interpretation was
properly raised below, we will review a new argument that is “an
integral extension of our interpretive task.” Bagley v. Bagley, 2016 UT
48, ¶ 26, 387 P.3d 1000.
13
BOUNTIFUL CITY v. BAIZE
Opinion of the Court
¶39 If Baize’s description of the court of appeals’ opinion were
accurate, we might be partly inclined to agree with him on the first
issue. But it is not. Baize mischaracterizes the court of appeals’
holding. And he asks us for a sweeping interpretation of the
“reasonable discipline” defense that runs afoul of the Statute’s plain
language. We therefore reject both of Baize’s statutory interpretation
arguments.
A. Baize Misinterprets the Statute and
Mischaracterizes the Court of Appeals’ Opinion
¶40 Contrary to Baize’s characterization, the court of appeals did
not declare an unbending rule that anytime a parent spanks a child
and leaves a bruise, that parent is guilty of child abuse. Rather, the
court of appeals explained that a parent “may be convicted of child
abuse when he causes physical injury to a child, including bruising,
unless the conduct in question constituted reasonable discipline.” Bountiful
City v. Baize, 2019 UT App 24, ¶ 20, 438 P.3d 1041 (emphasis added)
(footnote omitted). The court specifically recognized that the
reasonable discipline “defense is available if the conduct is
(1) reasonable and (2) results in only [non-serious] physical injury.”
Id. ¶ 20 n.4 (emphasis added). The court further clarified that
“inflicting something less than serious physical injury” is neither
“always reasonable” nor always unreasonable. Id. ¶ 25. This accords
with our reading of the Statute.
¶41 Not only does Baize mischaracterize the court of appeals’
opinion, he asks us to adopt his own interpretation of the
“reasonable discipline” defense. Baize argues that any time a parent
disciplines a child and causes only non-serious injury, rather than
serious injury (as those terms are defined in the Statute), such
discipline should be deemed reasonable and justified or permissible
under the Statute. Baize made a similar argument at the court of
appeals, which rejected it.15 We disagree with Baize and agree with
the court of appeals.
15 Here, Baize argues that “[t]his defense applies so long as the
offense did not cause ‘serious bodily injury’ or ‘serious physical
injury.’” He also argues that “Baize’s conduct did not constitute
offense” “because the City presented no evidence that the bruise . . .
was serious or permanent. . . .” Baize’s argument at the court of
appeals was even more express. There, Baize argued 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
(continued . . .)
14
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¶42 “When conducting statutory interpretation, we focus on the
statute’s plain language because it is the ‘best evidence’ of the
legislature’s intent.” State v. Flora, 2020 UT 2, ¶ 21, 459 P.3d 975(quoting State v. Stewart, 2018 UT 24, ¶ 12, 438 P.3d 515). We
“presume that the legislature used each word advisedly,” and that
“the expression of one [term] should be interpreted as the exclusion
of another,” and we “give effect to every word of a statute, avoiding
[a]ny interpretation which renders parts or words in a statute
inoperative or superfluous.” Id. (alteration in original) (citations
omitted) (internal quotation marks omitted). We also “read the plain
language of the statute as a whole[] and interpret its provisions in
harmony with other statutes in the same chapter and related
chapters.” State v. Bess, 2019 UT 70, ¶ 25, 473 P.3d 157 (alteration in
original) (quoting State v. Holm, 2006 UT 31, ¶ 16, 137 P.3d 726).
¶43 Subsection 8 of Utah Code section 76-5-109 provides that a
“person is not guilty of an offense under this section for conduct that
constitutes: (a) reasonable discipline or management of a child . . .; [or]
(b) conduct described in Section 76-2-401. . . .” (Emphasis added.) In
turn, Utah Code section 76-2-401 provides that the “defense of
justification may be claimed . . . when the actor’s conduct is
reasonable discipline of minors by parents, guardians, teachers, or
other persons in loco parentis. . . .” UTAH CODE § 76-2-401(1)(c)
(emphasis added). But, the statute continues, the reasonable
discipline defense is “not available if the offense charged involves
causing . . . serious physical injury. . . .” Id. § 76-2-401(2).
¶44 Baize’s broad interpretation of the reasonable discipline
defense appears to stem from section 76-2-401(2). Because this statute
provides that the defense is “not available if the offense charged
involves causing . . . serious physical injury,” id. (emphasis added),
Baize interprets that to mean the “defense applies so long as the
offense did not cause ‘serious bodily injury’ or ‘serious physical
manner that does not inflict serious physical injury on the child.” Baize,
2019 UT App 24, ¶ 24 (emphasis added). In other words, he argued
that parental discipline is per se reasonable if it “(1) is done in good
faith and (2) does not cause serious bodily injury.” Id. (emphasis
added). The court of appeals understood Baize to be arguing that
“parental discipline resulting in mere physical injury . . . is by
definition reasonable” and thus exempted from the crime of child
abuse. Id. ¶ 25. The court of appeals correctly rejected that
interpretation. See id. ¶¶ 20 n.4, 25.
15
BOUNTIFUL CITY v. BAIZE
Opinion of the Court
injury.’” In other words, Baize’s reading would allow parents to
physically injure their children during the course of discipline so
long as the injury is not “serious,” regardless of the reasonability of
the parent’s conduct. His reading would also absolve defendants
from the responsibility of raising affirmative defenses and would
instead require the prosecution to “disprove every exception . . .
whether relevant in a given case or not.” Bess, 2019 UT 70, ¶ 31. That
is simply not what the Statute envisions.
¶45 Baize’s interpretation conflates the term “applies” with the
term “available,” and renders the term “reasonable” superfluous or
inoperative. Although we agree that section 76-2-401(2) implies the
reasonable discipline defense is available to be raised if the discipline
did not cause serious injury, this does not mean the defense
automatically applies or exonerates the defendant. Even though a
defendant need not “establish the justification or excuse by a
preponderance of the evidence before he is entitled to avail himself
of that defense,” State v. Dewey, 41 Utah 538, 127 P. 275, 280 (1912),
the existence of the defense does not translate to automatic
applicability or exoneration. The defendant must still present
“sufficient evidence . . . to put the affirmative defense at issue.” Bess,
2019 UT 70, ¶ 34 (citation omitted).
¶46 That means that in the case of the Child Abuse Statute, the
reasonable discipline defense is put “at issue” if the defendant
presents sufficient evidence that the discipline was both
“(1) reasonable and (2) result[ed] in only [non-serious] physical
injury,” as the court of appeals correctly explained. Baize, 2019 UT
App 24, ¶ 20 n.4. Establishing one of those elements does not
automatically establish the other, and the court of appeals correctly
concluded that “inflicting something less than serious physical
injury” is not “always reasonable,” nor is it always unreasonable. Id.
¶ 25. Only after evidence is presented on both the reasonability of
the discipline and the non-seriousness of the injury does the burden
shift to the prosecution to disprove either prong of the defense
beyond a reasonable doubt.16
16 We clarify that even where a defendant has sufficiently raised
these two prongs of the reasonable discipline defense, the defendant
may still be convicted if the prosecution disproves either prong
beyond a reasonable doubt.
16
Cite as: 2021 UT 9Opinion of the Court
¶47 In sum, we reject Baize’s overbroad reading of the
reasonable discipline defense and we reject his mischaracterization
of the court of appeals’ opinion.
B. Common Law Factors Are Not Required in the Child
Abuse Statute’s Reasonable Discipline Defense
¶48 Baize also argues that the court of appeals erred because it
failed to read into the Child Abuse Statute a series of common law
factors he harvests from the Restatement (Second) of Torts. He
presses us to do what the court of appeals did not; look beyond the
plain language of the statute to find that “subsection (8) of the
Statute requires consideration of . . . a number of factors, including
the nature of the misbehavior, the child’s age and size, and the
nature and propriety of the force used. . . .”
¶49 Baize avers that “the court of appeals unduly abrogated the
common law factors that are applicable in making a child abuse
determination” when it failed to take these factors into
consideration. Baize supports this proposition by reasoning that the
“common law [is] the rule of decision in Utah courts,” citing Utah
Code section 68-3-1. Baize misemploys that statute.
¶50 While Utah Code section 68-3-1 adopts the “common law of
England” as the “rule of decision in all courts of this state,” it only
does so “so far as it is not . . . in conflict with[] the . . . laws of this
state, and so far only as it is consistent with and adapted to the
natural and physical conditions of this state and the necessities of the
people hereof. . . .” Further, Utah Code section 68-3-1 is notably not
in the Utah Criminal Code, which is housed in title 76. Baize ignores
Utah Code section 76-1-105, which provides that “[c]ommon law
crimes are abolished and no conduct is a crime unless made so by
this code, other applicable statute or ordinance.”
¶51 In other words, “Utah’s criminal law is statutory.” State v.
Miller, 2008 UT 61, ¶ 16, 193 P.3d 92. This rule applies not only to the
elements and mens rea of the crime charged, but also to the defenses
available. See State v. Gardiner, 814 P.2d 568, 573–74 (Utah 1991). At
most, Baize’s citation to Utah Code section 68-3-1 invites us to
examine whether the legislature’s adoption of his “reasonable
discipline” defense, as codified in Utah Code sections 76-2-401 and
76-5-109, leaves room for common law understandings of the
contours of that defense. But, as we discuss below, none of the cases
or restatements Baize cites convince us to adopt his theory that the
statute contemplates a list of factors that the trier of fact must
consider before it can decide whether a parent’s discipline is
reasonable or not.
17
BOUNTIFUL CITY v. BAIZE
Opinion of the Court
¶52 Indeed, the cases and restatements Baize cites do not
support his contention that Utah courts must consider a specific list
of factors when analyzing a “reasonable discipline” defense to a
criminal charge of child abuse. For example, Baize cites the 1977 U.S.
Supreme Court case of Ingraham v. Wright, which examined whether
corporal punishment in Florida schools was permissible under the
Eighth and Fourteenth Amendments of the U.S. Constitution. 430
U.S. 651, 653 (1977). This in no way answers the question of when
and how parental discipline of a child is permissible under Utah’s
criminal code.
¶53 Baize also cites a number of cases reviewing juvenile court
decisions, which deal with different statutes and different standards
of proof than those at issue here. See, e.g., State ex rel. L.P., 1999 UT
App 157, ¶ 6, 981 P.2d 848 (overturning the juvenile court for
applying the definition of child abuse found in the criminal code,
rather than that in the Juvenile Court Act of 1996). One case Baize
cites doesn’t even examine the “reasonable discipline” provision17 of
the Juvenile Court Act. See In re K.T., 2017 UT 44, ¶¶ 14, 11 n.4, 424
P.3d 91 (holding that it is not “abuse” per se to use an object to strike
a child absent any evidence of “harm”; but expressly “not
address[ing] any reasonable discipline exception,” which the parties
had not raised).
¶54 Another juvenile court case Baize cites examines
“reasonable discipline,” in the context of discipline by a teacher (not a
parent) charged under the Juvenile Court Act (not the Child Abuse
Statute). K.Y. v. Div. of Child & Family Servs., 2010 UT App 335, 244
P.3d 399. But the issue there arose in the layered context of a
provision of the public education code protecting teachers in a way
that differs from the reasonable discipline provision of Utah Code
section 76-5-109(8). Compare UTAH CODE § 76-5-109(8), with K.Y., 2010
UT App 335, ¶ 23 (discussing UTAH CODE § 53A-11-804 (renumbered
as § 53G-8-304)). Even if K.Y. were applicable to Baize’s situation, it
17 Multiple cases the City cites also fail to address the “reasonable
discipline” provision under the Child Abuse Statute. See West Valley
City v. Norris, 2001 UT App 279U, para. 1, 2001 WL 1135405; Provo
City v. Cannon, 1999 UT App 344, ¶ 2, 994 P.2d 206. Nor do they
address “reasonable discipline” under the Juvenile Court Act. See
K.A.M. v. State, Div. of Child & Family Servs., 2004 UT App 48U, 2004
WL 396421; In re K.C., 2013 UT App 201, ¶ 18, 309 P.3d 255. We also
do not find those cases helpful to our analysis either.
18
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would only establish the unremarkable proposition that “the record
must support a conclusion that [defendant’s] actions fall within the
statutory abuse definition. . . .” K.Y., 2010 UT App 335, ¶ 23.
¶55 K.Y. does hold that when a court makes a reasonable
discipline determination, then “[t]he issue of whether discipline was
reasonable is a fact-dependent analysis that must take into account
the various circumstances of the particular case.” Id. ¶ 25.18 True
enough. But that holding does not support Baize’s theory that courts
must examine a specific list of factors in making reasonable
discipline determinations. It simply establishes that the trier of fact
must make a case-specific, circumstance-specific factual inquiry.
¶56 Baize’s citations to In re L.P., 1999 UT App 157, 981 P.2d 848,
likewise do not prove his argument that the Child Abuse Statute
requires a court to work from a specific list of common law factors to
decide whether a parent reasonably disciplined their child. The court
of appeals in In re L.P. advised that juvenile courts—in the process of
determining whether the definition of “abused child” has been met
under the Juvenile Court Act19—should make “detailed findings
supporting [their] ultimate decision” and “[s]uch factual findings
may include, but are not limited to” a long list of factors, one of which
was “reasonable discipline.” Id. ¶ 8 (emphases added).
¶57 Thus, In re L.P. does not support Baize’s proposition for at
least three reasons. First, In re L.P. did not list factors to be used in a
reasonable discipline determination, but rather, it listed “reasonable
discipline” as one factor for making an “abused child” determination.
Id. (emphasis added). Second, the L.P. court expressly did not
18 Although K.Y. supports this proposition by citing to In re L.P.,
1999 UT App 157, ¶¶ 8–9, 981 P.2d 848, explaining that In re L.P.
“list[s] various factors that may indicate whether discipline was
reasonable,” K.Y., UT App 335, ¶ 23, that does not indicate the K.Y.
court thought such factors must be expressly considered as a matter
of course in every case. Moreover, as we explain in the following
paragraph, K.Y. mischaracterized In re L.P., because L.P. in fact did
not list factors for a reasonable discipline determination but rather
listed possible factors for an abuse determination.
19 The Juvenile Court Act of 1996 defines “abused child” as when
a child has suffered “nonaccidental harm.” See In re L.P., 1999 UT
App 157, ¶ 7 (citing UTAH CODE § 78-3a-103(1)(a)(i) (renumbered as
§ 78A-6-105)).
19
BOUNTIFUL CITY v. BAIZE
Opinion of the Court
provide guidance for criminal statutes such as Utah Code section 76-
5-109. See id. ¶ 6. Third, In re L.P. said the factors “may include,” not
must include, and it expressly said that “[n]one of the factors listed
above is necessarily dispositive,” and the factors should simply
“guide the juvenile court as it exercises its broad discretion in making
that determination.” Id. ¶ 8 (emphases added); see also In re K.T., 2017
UT 44, ¶ 12 (reiterating that In re L.P. simply “listed a number of
factors that a juvenile court should consider before determining
whether a child has been abused within the meaning of the [Juvenile
Court Act]” and that “[n]one of the factors . . . is necessarily
dispositive.” (second alteration in original)).
¶58 In sum, Baize has cited nothing that controls our statutory
analysis under the Child Abuse Statute. Nor has he cited any
authority that supports his contention that Utah courts must consider
certain factors in making a reasonable discipline determination. We
nevertheless extract some useful guidance from some of those cases.
First, we agree with K.T. that a trier of fact should “examine
situations as a whole,” and that no one factor is necessary or
sufficient for such a determination. See In re K.T., 2017 UT 44, ¶¶ 16,
12. That logic applies with equal force to reasonable discipline
determinations under the Child Abuse Statute.
¶59 In addition, we agree with K.Y. that “[t]he issue of whether
discipline was reasonable is a fact-dependent analysis that must take
into account the various circumstances of the particular case.” See
K.Y., 2010 UT App 335, ¶ 25. This accords with the ordinary meaning
of “reasonable.” See Reasonable, BLACK’S LAW DICTIONARY (11th ed.
2019) (“Fair, proper, or moderate under the circumstances. . . .”); see
also STEPHEN MICHAEL SHEPPARD, Reasonable (Reasonableness), in THE
WOLTERS KLUWER BOUVIER LAW DICTIONARY (Desk ed. 2012) (“A
reasonable action is what most rational and fair-minded people
could be expected to do in a given situation. Reasonableness differs
from but is related to the idea of the right thing to do, or the moral
duty to do what is right.”).
¶60 We also borrow from In re L.P. to note that that “the
relationship between the need and the amount [and type] of
punishment administered,” 1999 UT App 157, ¶ 8 (citation omitted),
may be relevant to a court’s determination of whether parental
discipline was reasonable. Likewise, the child’s age and size may
also be relevant in some situations. But we reiterate that these factors
may not necessarily be relevant in every case. As the court of appeals
noted, district courts have “broad discretion” to determine the
factors that are relevant in a particular case. Id.20
Cite as: 2021 UT 9Opinion of the Court
¶61 Finally, and important to the discussion we undertake in the
next section, we also agree with something else the court of appeals
stated in In re L.P. There, the court of appeals observed that trial
courts should make “detailed findings supporting [their] ultimate
decision so that a body of case law can be developed,” and so
appellate courts can “review abuse determinations more effectively.”
Id. ¶¶ 8–9.
¶62 Simply stated, the court of appeals did not err when it
rejected Baize’s argument that the district court needed to examine a
specific list of common law factors to decide whether Baize’s
discipline was reasonable. Baize, 2019 UT App 24, ¶¶ 24–25.
III. THE COURT OF APPEALS ERRED IN
CONCLUDING THAT THE DISTRICT COURT
CORRECTLY APPLIED THE STATUTE
¶63 Baize next argues that the court of appeals erred in its
application of the Child Abuse Statute. The district court, Baize
argues, failed to engage in a “reasonable discipline” analysis
separate from its examination of the Statute’s mens rea requirement.
According to Baize, the court of appeals mistook the district court’s
examination of the mens rea (criminal negligence) for a “reasonable
discipline” analysis and therefore erroneously concluded that the
district court sufficiently applied the two necessary tests. Baize
alternatively argues that, if the district court did analyze the
reasonable discipline defense, it did so incorrectly. We agree with
Baize in part.
A. Neither Party Has Petitioned for Review of the Court of
Appeals’ Determination that Baize’s Trial Counsel
Raised the Reasonable Discipline Defense
¶64 Before turning to the court of appeals’ determination that
the district court actually and sufficiently undertook a “reasonable
discipline” analysis, we first explain why we will operate from the
assumption that the prosecution and district court had an obligation
to address the defense.
¶65 We reiterate that the “reasonable discipline” provisions in
sections 76-5-109(8) and 76-2-401(1)(c) of the Utah Code are
affirmative defenses, not elements of the offense, and thus need only
be addressed and negated by the prosecution if “the defendant has
presented evidence of such affirmative defense.” See UTAH CODE
§ 76-1-502(2)(b); see also supra ¶¶ 37, 46. The prosecution must
disprove the defense beyond a reasonable doubt only after “sufficient
evidence [has been] presented at trial to put the affirmative defense
21
BOUNTIFUL CITY v. BAIZE
Opinion of the Court
at issue.” State v. Bess, 2019 UT 70, ¶ 34, 473 P.3d 157 (citation
omitted); see also State v. Drej, 2010 UT 35, ¶ 15, 233 P.3d 476 (“The
Utah rule requires that the prosecution ‘disprove the existence of
affirmative defenses beyond a reasonable doubt once the defendant has
produced some evidence of the defense.’” (emphasis added) (citation
omitted)). This assumes importance here because it was incumbent
upon Baize to raise the affirmative defense at trial in order to trigger
the prosecution’s and district court’s obligation to address that
defense.
¶66 In the court of appeals, Baize argued that he had been
denied effective assistance of counsel because his trial attorney did
not raise the defense.20 Before us, the City pounces on Baize’s
argument before the court of appeals that his counsel rendered
ineffective assistance of counsel. And the City argues that “it is
undisputed Baize did not raise [the] defense during the trial.” Based
on this, the City posits that we need not address Baize’s argument
that the district court misapplied the defense.
¶67 But the City’s contentions on this point ignore the court of
appeals’ conclusion that Baize’s trial counsel sufficiently raised and
“effectively communicated the existence of the [reasonable
discipline] justification defense. . . .” Bountiful City v. Baize, 2019 UT
App 24, ¶ 29, 438 P.3d 1041. The court of appeals’ conclusion echoes
through our opinion because if Baize’s counsel raised the defense,
then the prosecution had an obligation to respond to and disprove
the defense, and the district court had an obligation to address it and
make findings. See supra ¶¶ 37, 46.
¶68 Baize’s petition for certiorari does not ask us to review this
part of the court of appeals’ decision, nor has the City cross-
petitioned us to review it. Instead, Baize implies, and the City
effectively concedes, that Baize’s counsel raised the defense and,
therefore, the district court needed to engage in such an analysis.
Baize argued to us that “these affirmative defenses were squarely
before the court by virtue of its ‘reasonable discipline analysis’” and
therefore “the City bore the burden of disproving at least one
20 In his briefing to the court of appeals, Baize conceded that his
trial counsel’s “arguments at closing. . . . were essentially consistent
with the defense of justification.” Bountiful City v. Baize, 2017 UT App
25, ¶ 28, 438 P.3d 1041. This permitted the court of appeals to reject
the ineffective assistance of counsel argument.
22
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element of these defenses. . . .” And, by implication, Baize assumes
the district court would then also need to address those defenses.
¶69 The City, on the other hand, initially rebuts Baize’s
assertions by contending “Baize never raised these defenses during
trial” and, therefore, the City did not “bear[] the burden of
disproving the elements of the defenses. . . .” But the City goes on to
concede that “the record contains testimony and colloquy by the City
and Baize’s counsel regarding both the ‘justification’ and ‘reasonable
discipline defense.’” (Emphasis added.) The City further contends,
“[b]oth the trial and appellate courts had access to testimony about
the victim’s poor behavior. . . . In fact the Court of Appeals cited
exculpatory facts regarding both ‘reasonable discipline’ and
justification in its opinion.” This causes the City to argue that “the
Court of Appeals had a ‘complete picture’ when it rendered its
analysis and this issue is moot.” (Emphasis added.) In other words,
the City argues that Baize’s trial counsel, the City’s trial counsel, and
the district court all addressed the issues of “reasonable discipline”
and “justification,” so the question of whether Baize’s counsel put
the reasonable discipline defense at play is irrelevant or moot. The
parties’ disagreement before us, therefore, hinges on whether the
district court actually and/or correctly undertook a reasonable
discipline analysis.
¶70 The adversarial nature of our judicial system is based “on
the premise that parties are in the best position to select and argue
the issues most advantageous to themselves. . . .” State v. Johnson,
2017 UT 76, ¶ 8, 416 P.3d 443. “[P]arties have the duty to identify
[the] legal issues and bring [the] arguments” they are pursuing. Id.
¶ 14. “If the parties fail to raise an issue in either the trial or appellate
court, they risk losing the opportunity to have the court address that
issue.” Id. (footnote omitted).
¶71 In light of this posture, we proceed from the presumption
that the district court needed to conduct a reasonable discipline
analysis because: (1) the court of appeals determined that Baize’s
trial counsel effectively raised the “reasonable discipline” affirmative
defense; (2) neither of the parties challenged the court of appeals’
holding in that respect; (3) neither party directly argues that the
district court did not need to perform a reasonable discipline
analysis; and (4) the City’s assertion that Baize’s trial counsel
engaged in a “colloquy” and “testimony” “regarding both
‘justification’ and ‘reasonable discipline’” effectively constitutes a
concession that Baize’s trial counsel did raise the defense. We
therefore refrain from revisiting whether Baize preserved the
23
BOUNTIFUL CITY v. BAIZE
Opinion of the Court
defense and whether the court of appeals’ determination binds us to
the conclusion that Baize raised the defense in the district court.
¶72 In other words, because of the way the parties have
approached this case, the question before us is not whether the
district court needed to perform a “reasonable discipline” analysis,
but rather whether the court of appeals was correct in holding that
the district court’s reasoning amounted to a “reasonable discipline”
analysis at all.
B. The Court of Appeals Erred in Concluding That the
District Court Clearly Applied the Statute Correctly
¶73 We disagree with the court of appeals’ conclusion that it is
“clear from the record” that the district court actually and correctly
conducted a “reasonable discipline” analysis. See Baize, 2019 UT
App 24, ¶¶ 22–23. We find the record far less clear than the court of
appeals did.
¶74 The court of appeals based its conclusion on this portion of
the district court’s analysis:
[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 [the] discipline was a gross
deviation from the standard of care that an ordinary person
would exercise. It was just too hard.
See id. ¶ 22 (quoting the district court) (emphases added by the court
of appeals). The court of appeals reasoned that “gross deviation from
the standard of care” 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.’” Id. ¶ 23. We are far less certain than the court of
appeals that the district court had the reasonable discipline defense
in mind when it engaged in that analysis.
¶75 The court of appeals appears to have discounted that “gross
deviation from the standard of care” is specifically the language of
the relevant mens rea—criminal negligence—which appears in
section 76-2-103(4) of the Utah Code. The district court read this
statute aloud earlier in the proceeding, “to make sure we are all on
the same page.” Further, the district court expressly emphasized its
focus on the mens rea when it interrupted the closing argument of
the City, who had begun to say that, in this case, “the focus of course
should be. . . .” The court interjected: “The mens rea.” In contrast, the
district court did not read from or cite any defense or justification in
24
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section 76-5-109(8) or 76-2-401 of the Utah Code. Nor did it use the
term “reasonable discipline” in its deliberations.
¶76 There may be some merit to the court of appeals’
observation that the district court acknowledged that “a parent
should be allowed to discipline his children in an appropriate way,”
and “the fact that Baize was [Son’s] parent . . . is relevant under Utah
Code section 76-5-109(8).” Baize, 2019 UT App 24, ¶ 22 (emphasis
omitted).21 It may also be consequential that the district court was
concerned not just with any amount of contusion or bruising, but
specifically “the level of contusion, the bruising,” and that it “was just
too hard.” Id. (emphasis added).
¶77 But when we look beyond the snippets of the district court’s
decision that the court of appeals discussed and examine them in the
context of the whole record, we have serious doubts that the district
court was undertaking an analysis of whether Baize’s conduct
constituted permissible “reasonable discipline.” Instead, it appears
that the district court was focused on whether Baize’s behavior met
the criminal negligence standard of mens rea. And while we
recognize the possibility that a reasonable discipline determination
may be supported by the same facts as a criminal negligence
determination, we cannot allow one conclusion to wholly and
implicitly serve double-duty for the other. The Statute includes two
separate provisions for criminal negligence as the mens rea of the
crime and for reasonable discipline as an affirmative defense.
Because it’s unclear from the record whether the district court’s
analysis was anything other than an analysis of criminal negligence,
and because a district court’s criminal negligence finding cannot
implicitly serve as a “reasonable discipline” finding, we cannot let
the court of appeals’ decision stand.
¶78 Even if the district court did have the reasonable discipline
defense in mind, the record indicates that the district court may have
considered certain relevant circumstances to be irrelevant. As this
case will return to the district court on remand, we take the occasion
to clarify this potential misapplication of the Statute. Specifically, we
are troubled that the district court said, “I think [the City] has it
right,” after the City had repeatedly argued for application of
21 We clarify that Utah Code section 76-5-109(8) applies to any
“person,” but section 76-2-401(1)(c), which is incorporated by
reference in 76-5-109(8), applies to “parents, guardians, teachers, or
other persons in loco parentis. . . .”
25
BOUNTIFUL CITY v. BAIZE
Opinion of the Court
something akin to a per se rule and encouraged the district court to
disregard potentially relevant considerations that could have spoken
to the reasonableness of Baize’s discipline. Specifically, the City
repeatedly argued that Son’s “behavior really doesn’t matter in the
scheme of things.” The City further asserted that “[i]t comes down to
the fact that while disciplining his child [Baize] left a handprint on
[Son], bruised him. . . . That’s it.” Baize, 2019 UT App 24, ¶ 11 (third
alteration in original).
¶79 As we have already discussed, that’s not it. When the
defendant has presented sufficient evidence to put the affirmative
defense of “reasonable discipline” at issue, then the prosecution
must also disprove that defense beyond a reasonable doubt. See
supra ¶ 37. Further, although the Statute does not require an
examination of the specific common law factors that Baize argues a
district court must consider, the Statute does require an examination
of all relevant circumstances, as we discussed above. See supra
¶¶ 58–62. And, moreover, a court is obligated to enter findings
sufficient to allow a reviewing court to examine the thinking behind
its determination that the discipline was reasonable or not. We do
not have that type of record before us.
¶80 Because of the district court’s comments appearing to
approve of the City’s incorrect interpretation of the Statute’s
requirements, we are unsure whether the court correctly analyzed
the reasonable discipline defense. In other words, to the extent the
district court considered whether Baize’s discipline was reasonable,
we have no visibility into what facts the district court might have
considered to make that determination. Without that detail, we
cannot meaningfully review the district court’s decision. Thus, we
order remand to permit the district court to clarify its ruling.
CONCLUSION
¶81 Although we hold that the court of appeals was largely
correct in its construction of the Child Abuse Statute, we
nevertheless hold that the court erred when it concluded that it was
“clear” the district court correctly applied the Statute’s “reasonable
discipline” defense. On the findings in front of us, we are unable to
ascertain whether the district court addressed the defense and, if it
did, what was the basis for a determination that Baize’s discipline
was not reasonable. We therefore vacate Baize’s conviction and
remand to the district court to squarely address Baize’s reasonable
discipline defense. The district court may, if it deems helpful, permit
further evidence and argument on that question, and conduct any
other proceedings necessary to address the “reasonable discipline”
26
Cite as: 2021 UT 9Opinion of the Court
defense that Utah Code sections 76-5-109(8) and 76-2-401(1)(c)
provide. But the court must enter findings and conclusions on the
question of “reasonable discipline” sufficient to permit meaningful
appellate review.
27