Bountiful City v. Baize

2019 UT App 24
THE UTAH COURT OF APPEALS
BOUNTIFUL C ITY ,
Appellee,
v.
NATHAN DAVID B AIZE,
Appellant.
Opinion
No. 20170155-CA
Filed February 14, 2019
Second District Court, Bountiful Department
The Honorable Glen R. Dawson
No. 161800370
Scott L. Wiggins, Attorney for Appellant
Jacob L. Fordham, Attorney for Appellee
JUDGE D AVID N. M ORTENSEN authored this Opinion, in which
JUDGES K ATE A PPLEBY and JILL M. POHLMAN concurred.
MORTENSEN, Judge:
¶1 	Utah’s 	criminal 	law 	recognizes 	that 	a 	parent 	may
discipline 	a 	child. 	Criminal 	sanctions may 	attach, 	however,
when parental discipline exceeds the bounds of reasonableness
or where serious physical injury results. After a bench trial,
during which the court heard evidence that Nathan David Baize
spanked his four-year-old son with enough force to leave a
bruise in the shape of a handprint, the court found Baize guilty
beyond a reasonable doubt of misdemeanor level child abuse.
Baize appeals, claiming the court misconstrued the facts and
misapplied the law. We affirm.

Bountiful City v. Baize
20170155-CA 	2 	2019 UT App 24
BACKGROUIND1
The Incident of Abuse
¶2 	In late June 2016, Baize had his four-year-old son (Victim)
for weekend parent-time. Baize and Victim’s mother (Mother),
are divorced and have joint custody of Victim. Victim spends
every other weekend with Baize.
¶3 	On the weekend in question, Victim had been acting up,
and Baize and Mother exchanged emails about this behavior.
Mother recalled that the emails described Victim as “yelling and
screaming, washing out. He was saying terrible things, he was
going to hurt people. He was mad. He wanted to go home. He
was upset. Completely distraught.”
¶4 	Victim 	was 	“throwing 	temper 	tantrums, 	using 	foul
language, [and] saying that he wanted [Baize] dead” on the day
of the abuse. The bad behavior escalated during a car ride to a
grocery 	store. 	Victim 	began 	kicking 	and 	punching 	his
grandmother, who was with Baize and Victim. It took about an
hour to calm down Victim enough to get him strapped in his car
seat. 	Even 	then, 	Victim 	continued 	to 	jump 	up 	and 	down,
“slamming his rear end on the bottom of the car seat.”
¶5 	Once they got home, Victim continued to fight with Baize.
After trying various disciplinary interventions, Baize determined
that his last resort was to spank Victim. Baize put Victim over his
knee and warned him that he was going to be spanked unless he
calmed down. When Victim continued to swear and tell Baize
that he hated him, Baize spanked him one time. Baize gave
Victim additional warnings, and then spanked him a second and
third time.
1. On appeal, we construe the facts in the light most favorable to
the verdict. See State v. Miller, 2017 UT App 171, ¶ 2 n.1, 405 P.3d
860.

Bountiful City v. Baize
20170155-CA 	3 	2019 UT App 24
¶6 	Eventually, Baize called Mother and asked that she pick
up Victim several hours earlier than the planned exchange.
While changing Victim’s clothes that evening, Mother noticed
bruising on his bottom. When she asked Victim what had
happened, he responded, “Don’t talk to me about this,” and
requested that everyone leave his room. A few minutes later,
Victim 	disclosed 	to 	Mother 	what 	had 	happened. 	Mother
immediately called the Division of Child and Family Services
(DCFS).
¶7 	The 	next 	morning, 	Mother 	took 	photographs 	of 	the
bruising on Victim’s bottom, one of which was introduced as
evidence. 	Mother 	testified 	that 	the 	photograph 	accurately
depicted the injuries she saw on Victim: “I see fingerprints. I see,
that are bruised, bruising, fingerprints. There are lines on his
bottom, bruising. There [are] little spots on his bottom that are
bruised.” 	Mother 	stated 	that 	she 	“was 	pretty 	sick 	to 	[her]
stomach” when she saw Victim’s injuries.
¶8 	An investigator from DCFS came by the day after the
spanking 	and 	advised 	Mother 	to 	call 	the 	police 	about 	the
incident. A detective (Detective) from the Bountiful City Police
Department was assigned to the case. Detective arranged an
interview 	for 	Victim 	at 	the 	Children’s 	Justice 	Center 	(CJC
Interview). After viewing the photographs and hearing Victim’s
CJC Interview, Detective determined that he needed to interview
Baize.
¶9 	Detective testified that the photograph introduced at trial
depicted signs of redness consistent with diaper rash on Victim’s
bottom, but he also observed that it showed a yellowish bruise in
the shape of “a finger or a handprint.” Detective noted that there
were no reports indicating that Victim needed medical attention
for injuries related to the abuse. Detective also testified that
Baize appeared to be in control of what he was doing when he
spanked Victim.

Bountiful City v. Baize
20170155-CA 	4 	2019 UT App 24
¶10 	Bountiful City (the City) charged Baize with child abuse
in violation of Utah Code section 76-5-109(3)(c). Baize pled not
guilty and requested a bench trial.
The Proceedings
¶11 	The City argued that it is not “illegal or wrong” to
discipline a child by spanking, but “when you spank a child to
the point where there is physical injury is where you come to a
Class C misdemeanor child abuse.” The City said that Baize
“should be aware that there may be bruising, that [he] may
injure a child. [He is] putting [his] hands on a child. It’s obvious
to all of us that there’s a risk that [he] may injure the child if [he]
spank[s] the child too hard.” The City further noted that it was
not arguing that Baize “committed child abuse by spanking
[Victim], once[,] twice[,] or three times. That’s . . . within his
realm as a parent to do. However, it’s clear that he left an injury
on the child. A handprint on the child’s behind, buttocks is
clearly caused only by spanking.” The City concluded, “We are
not here to stand up and tell the defendant how to parent his
child or whether spanking is right or wrong. None of that is in
play. It comes down to the fact that while disciplining his child
[he] left a handprint on him, bruised him . . . . That’s it.”
¶12 	Baize’s trial counsel argued that spanking Victim “was
not a gross deviation from the standard of care based on facts
[and] 	specific 	evidence 	that 	[was 	introduced]. 	. 	. 	. 	[T]his
spanking was not done out of anger. It was in a controlled
manner. And it was as a result of trying to help the child calm
down and get under control.” Rather than admitting he struck
Victim too hard, Baize’s counsel argued that “[Baize] did not
take an unjustifiable risk to cause bruising.” Rather, “as a parent,
the only way that he had left [to discipline] in his repertoire . . .
[was] 	telling 	[Victim] 	what 	he 	was 	going 	to 	do 	and 	then
stopping after he had done it to the point where he thought that
was enough. That is not a gross deviation from the standard of
care.”

Bountiful City v. Baize
20170155-CA 	5 	2019 UT App 24
¶13 	After hearing the evidence, including testimony from
Mother and Detective, and after hearing the arguments, the
court concluded:
The statute involved as we all understand is [Utah
Code section] 76-5-109. Any person who inflicts
upon a child physical injury—I’m just reading the
pertinent part—is guilty of an offense as follows.
Part C, if done with criminal negligence the offense
is a Class C misdemeanor. And, again, I previously
read the definition of criminal negligence. I won’t
read that again. It is the lowest of the four mens rea
standards that are recognized in Utah State law.
I further note that physical injury is defined under
[section] 76-5-109. And I’ll just read a small part of
that. “Physical 	injury means an 	injury to or a
condition of the child which impairs the physical
condition of the child, including, 1, a bruise or
other contusion of the skin.” There are other—
there is a further definition of physical injury, but
I’m just going to stop there for purposes of this
case.
The court continued:
[C]ertainly, 	a 	parent 	should 	be 	allowed 	to
discipline his children in an appropriate way. But
the level of contusion, the bruising on the buttocks
of the child causes me to come to the conclusion
that discipline 	was a 	gross deviation 	from the
standard of care that an ordinary person would
exercise. It was just too hard. It was too hard. And
in light of that, I will enter a judgment for a
conviction for the Class C misdemeanor, inflicting
physical injury on a child with criminal negligence,

Bountiful City v. Baize
20170155-CA 	6 	2019 UT App 24
finding proof beyond a reasonable doubt based on
the testimony of the two witnesses.
¶14 	The judgment on the verdict was entered, and Baize was
sentenced. Baize now appeals.
ISSUES AND STANDARDS OF REVIEW
¶15 	Baize raises two issues on appeal. First, Baize claims that
the district court misinterpreted and misapplied Utah Code
section 76-5-109 by concluding that he committed child abuse.
“The correct interpretation of a statute is a question of law and is
reviewed for correctness.” State v. Larsen, 865 P.2d 1355, 1357
(Utah 1993). Because it was not preserved at trial, Baize raises
this issue pursuant to plain error. To establish the existence of
plain error, Baize must show “(i) [a]n error exists; (ii) the error
should have been obvious to the trial court; and (iii) the error is
harmful, i.e., absent the error, there is a reasonable likelihood of
a 	more 	favorable 	outcome 	for 	the 	appellant, 	or 	phrased
differently, our confidence in the verdict is undermined.” State v.
Dunn, 850 P.2d 1201, 1208–09 (Utah 1993).
¶16 	Second, Baize claims that his trial counsel deprived him of
effective assistance by failing to raise a defense of justification as
provided in Utah Code section 76-2-401. “When a claim of
ineffective assistance of counsel is raised for the first time on
appeal, there is no lower court ruling to review and we must
decide whether the defendant was deprived of the effective
assistance of counsel as a matter of law.” State v. Beckering, 2015
UT App 53, ¶ 18, 346 P.3d 672 (cleaned up).2
2. In a separate rule 23B motion filed simultaneously with his
brief, Baize seeks remand to the district court to make findings
and conclusions that his trial counsel was ineffective in failing to
investigate and research the CJC Interview. “A remand under
(continued…)

Bountiful City v. Baize
20170155-CA 	7 	2019 UT App 24
ANALYSIS
I. Interpretation and Application of Utah Code Section 76-5-109
A. 	The Statute’s Plain Language
¶17 	On appeal, Baize argues that the district court erred in
interpreting 	and 	applying 	Utah 	Code 	section 	76-5-109.
Specifically, 	Baize 	asserts 	that 	“the 	court 	failed 	to 	read
subsections (3) and (8) together as required by the language of
the 	statute.” 	Had 	the 	court 	properly 	considered 	the 	two
subsections, Baize contends, it would have concluded his actions
were justified and did not constitute child abuse.
¶18 	“When interpreting statutes, we determine the statute’s
meaning by first looking to the statute’s plain language, and give
effect to the plain language unless the language is ambiguous.”
State v. Schofield, 2002 UT 132, ¶ 8, 63 P.3d 667 (cleaned up). In
(…continued)
rule 23B will only be granted upon a nonspeculative allegation
of facts, not fully appearing in the record on appeal, which, if
true, 	could 	support 	a 	determination 	that 	counsel 	was
ineffective.” State v. Lee, 2014 UT App 4, ¶ 5, 318 P.3d 1164
(cleaned 	up). 	And 	to 	“prevail 	on 	grounds 	of 	ineffective
assistance, a defendant must demonstrate, first, that counsel’s
performance was deficient, in that it fell below an objective
standard of reasonable professional judgment, and second, that
counsel’s 	deficient 	performance 	was 	prejudicial—i.e., 	that 	it
affected the outcome of the case.” State v. Hand, 2016 UT App 26,
¶ 2, 367 P.3d 1052 (cleaned up). Nowhere in Baize’s motion does
he 	demonstrate 	nonspeculative 	facts 	that 	would 	support 	a
determination that trial counsel was ineffective or any resulting
prejudice. 	The 	motion 	and 	accompanying 	affidavit 	make
conclusory allegations that the CJC Interview contained critical
evidence, but nowhere does Baize identify that evidence. Thus,
we decline to grant remand on Baize’s separate rule 23B motion.

Bountiful City v. Baize
20170155-CA 	8 	2019 UT App 24
addition, “the plain language of a statute is to be read as a
whole, and its provisions interpreted in harmony with other
provisions in the same statute and with other statutes under the
same and related chapters.” Id. (cleaned up). Contrary to Baize’s
assertions, we conclude that the district court engaged in just
such an integrated analysis in reaching its decision that Baize
committed child abuse.
¶19 	The portion of the statute Baize violated states that “[a]ny
person who inflicts upon a child physical injury or, having the
care or custody of such child, causes or permits another to inflict
physical injury upon a child is guilty of an offense . . . if [the
injury is] done with criminal negligence.” Utah Code Ann.
§ 76-5-109(3)(c) (LexisNexis 2017).3 “‘Physical injury’ means an
injury to or condition of a child which impairs the physical
condition of the child, including . . . a bruise or other contusion
of the skin . . . .” Id. § 76-5-109(1)(e)(i).
¶20 	Baize correctly asserts that Utah Code section 76-5-109(3)
must be read in harmony with section 76-5-109(8), which states
that “[a] person is not guilty of an offense under this section for
conduct 	that 	constitutes: 	(a) 	reasonable 	discipline 	or
management of a child, including withholding privileges; [or]
(b) 	conduct 	described 	in 	Section 	76-2-401.” 	Id.
§ 76-5-109(8)(a)−(b). Utah Code section 76-2-401 states that a
“defense of justification” for alleged child abuse may be claimed
when “the actor’s conduct is reasonable discipline of minors by
parents, guardians, teachers, or other persons in loco parentis,”
unless such conduct results in serious bodily injury, serious
physical injury, or the death of the minor. Id. § 76-2-401(1)(c); see
also id. § 76-2-401(2). Thus, the statutes create a structure where a
parent-defendant may be convicted of child abuse when he
3. Because the statutory provisions in effect at the relevant time
do not differ in any material way from those now in effect, we
cite the current version of the Utah Code.

Bountiful City v. Baize
20170155-CA 	9 	2019 UT App 24
causes physical injury to a child, including bruising, unless the
conduct in question constituted reasonable discipline.4
¶21 	Baize argues on appeal that the district court failed to
undertake the “reasonable discipline” analysis required by Utah
Code section 76-5-109(8)(a). Specifically Baize states, “There is
nothing 	in 	the 	record 	demonstrating 	that 	the 	court 	read
subsection (3) of section 76-5-109 together with subsection (8) as
required by the plain language of the statute.”
¶22 	We acknowledge that the court did not explicitly invoke
the numbers of the two subsections in interpreting and applying
the statute. But it is nevertheless clear from the record that the
court conducted such an analysis in applying the statute to
Baize’s conduct. The court stated:
[A] 	parent 	should 	be 	allowed 	to 	discipline 	his
children in an appropriate way. But the level of
contusion, the bruising on the buttocks of the child
causes me to come to the conclusion that discipline
was a gross deviation from the standard of care that an
ordinary person would exercise. It was just too hard. It
was too hard.
(Emphasis added.) Accordingly, the court focused on the fact
that Baize was Victim’s parent, a status which is relevant under
Utah Code section 76-5-109(8).
4. As the statute makes clear, the defense is available if the
conduct is (1) reasonable and (2) results in only physical injury.
Utah 	Code 	Ann. 	§ 	76-2-401 	(LexisNexis 	2017); 	see 	also 	id.
§ 76-5-109(1)(e) 	(defining 	physical 	injury). 	The 	defense 	is
unavailable 	for 	reasonable 	discipline 	that 	results 	in 	serious
bodily injury, serious physical injury, or the death of a minor. See
id. § 76-2-401(2); see also id. § 76-1-601(11) (defining serious bodily
injury); id. § 76-5-109(1)(f) (defining serious physical injury).

Bountiful City v. Baize
20170155-CA 	10 	2019 UT App 24
¶23 	While the court never explicitly said Baize’s spanking of
Victim 	was 	“reasonable” 	or 	“unreasonable,” 	it 	did 	say 	his
conduct was “a gross deviation from the standard of care that an
ordinary person would exercise.” This is simply a variation in
nomenclature 	describing 	the 	concept 	of 	reasonableness. 	If
anything, the court’s finding is more specific than simply saying
the 	word 	“unreasonable.” 	We 	therefore 	consider 	Baize’s
argument 	that 	the 	district 	court 	failed 	to 	read 	the 	two
subsections together to be overly simplistic. Baize ignores that
the district court did undertake such an analysis, albeit using
different but equivalent language than that promoted by Baize.
And because the district court analyzed Baize’s conduct and
determined that it was a “gross deviation” from the ordinary
“standard of care,” we conclude that the court considered the
“reasonable discipline” analysis required by Utah Code section
76-5-109(8).
B. 	Reasonable Discipline of a Child
¶24 	Alternatively, 	Baize 	argues 	that 	“the 	court’s
determination that the spanking of [Victim] was unreasonable is
contrary to common law principles that dictate punishment and
chastisement are to be considered in light of the age, condition
and 	disposition 	of 	the 	child, 	and 	other 	surrounding
circumstances.” 	Baize 	would 	have 	us 	understand 	that
“discipline by a parent—under circumstances such as that in the
instant 	case—is 	reasonable 	so 	long 	as 	the 	discipline 	is
administered in a good faith manner that does not inflict serious
physical injury on the child.” In essence, Baize argues that
parental discipline is reasonable provided that it (1) is done in
good faith and (2) does not cause serious bodily injury.
¶25 	We reject Baize’s attempt to define reasonable parental
discipline. First, nowhere do the statutes in question use the
language, “administered in a good faith manner,” as a standard
for reasonableness. Baize has attempted to add a “good faith”
prong to the reasonableness standard without directing us to
supporting case law or other legal authority. Second, Utah Code

Bountiful City v. Baize
20170155-CA 	11 	2019 UT App 24
section 76-5-109 explicitly states that any person who inflicts
“physical injury” on a child is guilty of an offense. Utah Code
Ann. § 76-5-109(3) (LexisNexis 2017). In no way do any of the
statutes in question suggest that parental discipline resulting in
mere physical injury to a child is by definition reasonable, while
only discipline resulting in serious physical injury is unreasonable.
Rather, 	the 	statutes 	simply 	establish 	that 	the 	defense 	of
justification 	is 	unavailable 	to 	a 	parent 	who 	causes 	serious
physical 	injury 	in 	disciplining 	a 	child—not 	that 	inflicting
something less than serious physical injury is always reasonable.
See id. § 76-2-401(1)–(2). Thus, we decline to follow Baize’s logic
to the inevitable conclusion that a parent who physically injures
his child while inflicting discipline in good faith must be acting
reasonably.
¶26 	Thus, we conclude that the district court did not plainly
err in its interpretation and application of the relevant statutes.
II. Ineffective Assistance of Counsel
¶27 	Baize argues that his trial counsel deprived him of his
right to effective assistance of counsel by failing to bring the
justification defense identified in Utah Code section 76-2-401 to
the district court’s attention. The United States Supreme Court
established 	a 	two 	prong 	test 	to 	determine 	if 	counsel’s
performance is deficient. See Strickland v. Washington, 466 U.S.
668, 687 (1984). The test, as expressed by our supreme court,
requires a defendant to “show, first, that his counsel rendered a
deficient performance in some demonstrable manner, which
performance 	fell 	below an 	objective 	standard 	of 	reasonable
professional judgment and, second, that counsel’s performance
prejudiced the defendant.” Bundy v. Deland, 763 P.2d 803, 805
(Utah 1988). But “[i]t is not necessary to address both parts of the
test when the defendant makes an insufficient showing on one.”
State v. Veale, 2012 UT App 131, ¶ 5, 278 P.3d 153. Because we
conclude that Baize has failed to show his counsel performed
deficiently, we limit our analysis to the first prong.

Bountiful City v. Baize
20170155-CA 	12 	2019 UT App 24
¶28 	Baize asserts that his counsel’s ineffective assistance is
demonstrated by the district court’s failure “to read and analyze
subsection (3) of section 76-5-109 together with subsection (8).”
Baize 	argues 	that 	his 	counsel 	“failed 	to 	recognize 	the
requirement of reading these provisions together.” Yet Baize
admits that his counsel’s “arguments at closing . . . . were
essentially consistent with the defense of justification.”
¶29 	Baize’s ineffective assistance argument is without merit
precisely because his trial counsel—as Baize admits—argued for
a 	justification 	defense 	and 	the 	district 	court 	considered
justification as provided for in Utah Code section 76-5-109(8). See
supra ¶ 23. Trial counsel stated that Baize did not “take an
unjustifiable risk to cause bruising . . . . [T]he only way that he
had left [to discipline] in his repertoire . . . [was] telling [Victim]
what he was going to do and then stopping after he had done it
to the point where he thought that was enough. That is not a
gross deviation from the standard of care.” As with the analysis
of the district court, trial counsel was under no obligation to
refer 	to 	specific 	sections 	of 	the 	Utah 	Code 	in 	making 	the
justification defense argument. It is evident from the record that
Baize’s trial counsel effectively communicated the existence of
the justification defense without making explicit reference to the
subsections of the statute. Thus, we conclude that Baize has
failed to show ineffective assistance merely because his trial
counsel did not explicitly and simultaneously invoke specific
defenses available under Utah Code section 76-5-109(8).
CONCLUSION
¶30 	Baize’s argument that the district court misconstrued the
facts and misapplied the law fails. On the record here we see no
error in the district court’s analysis, and we further conclude that
Baize has failed to show deficient performance by his attorney.
¶31 	Affirmed.