Omission of Elements of Underlying Offense Was Error, But Plain, And Not Affecting Substantial Rights

State v. Peltier, Minn.S.Ct., 2/12/2016.  A jury convicted Ms. Peltier of first degree murder, child abuse, past pattern of child abuse.  "Child abuse" consists of any of twelve enumerated statutes, one of which is malicious punishment of a child.  

The court's instructions correctly stated the definition of this offense, and correctly stated the elements of the particular "child abuse" at issue, malicious punishment of a child.  It was when the trial court moved on to the "past pattern" part of the instruction that it tripped up.  The court got it right that felony malicious punishment of a child is a crime that may constitute a pattern of child abuse.  But, the instructions on "past pattern" omitted the offense elements of the crime of malicious punishment;  all that the instruction said was that malicious punishment can be committed when the punishment is to a child under the age of four and causes bodily harm to enumerated body areas.  This language does not describe any of the elements of malicious punishment; rather, it describes circumstances that when present elevate the conduct to a felony offense.

Justice Dietzen, writing for six members of the court, said that this omission of the actual elements was plain error.  The court reached this conclusion even though elsewhere in the instructions the trial court had correctly stated all of the elements of malicious punishment of a child. Unfortunately, although trial counsel made other objections to the instructions, this particular objection to language buried in the "past pattern" part didn't make the cut. Counsel did object to the first degree murder instruction "as a whole," but Justice Dietzen was unwilling to let that count.  The Justice went on to conclude that the error did not affect Ms. Peltier's substantial rights, in no small part because the omitted elements had been included elsewhere in the instructions.

Ms. Peltier also complained that the trial court abused its discretion in permitting a pediatrician specializing in child abuse to offer his opinion that biting was a "particularly vicious" form of child abuse. Counsel did object timely to this testimony and so it's subject to harmless error. Justice Dietzen said that whether the trial court was wrong in admitting the "particularly vicious" statement was a "close call."  So, the court ducked it.  The court assumed that it was error but then concluded that there was no reasonable likelihood that the remark significantly affected the verdict.

Finally, Ms. Peltier complained about remarks that the prosecutor made in closing argument.  Two in particular:  Ms. Peltier said that the prosecutor disparaged her right to a trial by jury by remarks that essentially suggested that the only reason that Ms. Peltier had gone to trial was in the hopes that enough things would go wrong with the state's presentation of its case - missing witnesses, forgetful witnesses, etc. - that there wouldn't be enough evidence to convict.  Justice Dietzen said that this argument "mischaracterized the reason for a trial" and was improper.  The prosecutor also argued that Ms. Peltier had learned abuse behavior from a past romantic partner and had engaged in behavior common to child abusers.  The problem, was, though, that the state hadn't offered any proof to support those assertions.  The Justice said that this argument was thus "troubling" and improper.  These two improper arguments were not, however, objected to, and so under plain error the court finds no impact to Ms. Peltier's substantial rights.