STATE OF MISSOURI, ) ) Plaintiff-Respondent, ) ) vs. ) No. SD32109 ) PETER D. HANSEN, ) Filed: April 18, 2014 ) Defendant-Appellant. )
APPEAL FROM THE CIRCUIT COURT OF GREENE COUNTY
Honorable J. Dan Conklin, Circuit Judge
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH DIRECTIONS
Peter D. Hansen (“Appellant”) was charged and convicted in a six-count
information with the class C felony of knowingly inflicting cruel and inhuman
punishment upon his son, who was less than seventeen years old, (1) by restricting him to
a cold bathroom without light, which was too small for the son to stretch out in, for hours
at a time, and (2) by restricting food. He was acquitted of the class C felony of
endangering the welfare of a child in the first degree by knowingly acting in a manner
that created a substantial risk to the body of the son by failing to provide adequate
1 nutrition and sustenance to the child.1 The court sentenced Appellant to three years
imprisonment on each count, to be served concurrently, suspended the execution of the
sentence, and ordered one hundred days of shock incarceration. Appellant brings two
claims of error, both claiming that the trial court erred in overruling his motion for
judgment of acquittal in that the State’s evidence failed to establish beyond a reasonable
doubt that Appellant knowingly inflicted cruel and unusual punishment upon his son in
either way. We agree that the trial court erred in not granting the judgment of acquittal
with regard to whether the restriction of food was cruel and unusual punishment, but
disagree with Appellant’s contention that the confinement was not cruel and unusual
punishment.
Appellant was raised in the Seventh Day Adventist Church. Seventh Day
Adventists practice a vegetarian lifestyle and encourage two, rather than three, meals per
day. Members are encouraged to eat a wide variety of natural foods, to drink six to eight
glasses of water a day, and to exercise.2 Appellant had custody of his two children, an
eleven-year-old girl and a fourteen-year-old boy. His family was evicted from their home
and lived in church buildings. They consumed mostly vegetables, grains, legumes, and
some fruit, adhering to the regimen of two meals per day, drinking sixty-four ounces of
water, and exercising. The children were home-schooled, but belonged to a church youth
organization which took them camping. They did not have a television but skateboarded
and bicycled. Appellant used two methods of punishment, restriction -- taking away
1 He was also acquitted of cruel and inhuman punishment to his daughter based on restricting food to her and of knowingly creating a substantial risk to the body by failing to provide adequate nutrition and sustenance to her. 2 There was evidence that Seventh Day Adventists live longer and healthier due to this lifestyle.
2 sweets, garnishes on their food, such as cheese3 or jelly, and five or six times denying
dinner -- and isolation -- where the children were isolated from the rest of the family in
the bathroom or another room.
The version of section 568.060 in effect at the time of the acts with which
Appellant was charged provided in part, “A person commits the crime of abuse of a child
if such person: (1) Knowingly inflicts cruel and inhuman punishment upon a child less
than seventeen years old[.]” Section 568.060.1, RSMo Cum. Supp. 1997.4 Cruel and
inhuman punishment was not defined in the statute. The current statute provides:
2. A person commits the offense of abuse or neglect of a child if such person knowingly causes a child who is less than eighteen years of age: (1) To suffer physical or mental injury as a result of abuse or neglect; or (2) To be placed in a situation in which the child may suffer physical or mental injury as the result of abuse or neglect.
Section 568.060.2, RSMo Cum. Supp. 2013. In State v. Brown, 660 S.W.2d 694 (Mo.
banc 1983), our Supreme Court indicated that the phrase “cruel and inhuman
punishment” has “a settled common-law meaning and are words of general and common
usage about which there is no great dispute as to meaning.” Id. at 698. The term
“punishment” has been defined as “severe, rough, or disastrous treatment.” State v.
Silvey, 980 S.W.2d 103,108 (Mo. App. S.D. 1998).
Count II of the amended information claimed that Appellant knowingly inflicted
cruel and inhuman punishment upon his son by restricting food from him. A key element
to the statute’s provision is that Appellant had to “knowingly inflict[] cruel and unusual
punishment.” Knowingly is defined as being aware “of the nature of his conduct or that
3 Much was made of the evidence that the family sometimes ate unusual food such as artichokes and Swiss chard. There was no evidence that eating artichokes or Swiss chard was in some way unhealthy for the family, nor were those particular foods only eaten by the son. 4 The legislature removed the phrase cruel and inhuman punishment from the statute in 2012.
3 those circumstances exist” or being “aware that his conduct is practically certain to cause
that result.” Section 562.016.3(1)-(2), RSMo 2000. The State claims that the evidence
demonstrated that Appellant knowingly subjected his fourteen-year-old son to severe
punishment by restricting food. As evidence that Appellant knowingly committed cruel
and inhuman punishment, the State claims that the family consumed two vegetarian
meals per day. The child was not allowed to eat whatever or whenever he wanted and
dinner was withheld about five or six times. As further evidence, the State notes that the
child was punished for allegedly stealing one dollar by not having ice cream with the
family. The State argues that it is “common sense” that the restriction of food was cruel
and inhuman.
The State admits that the majority of child abuse cases involve some sort of
physical injury; however a physical injury is not required. See State v. Hines, 377
S.W.3d 648, 657 (Mo. App. S.D. 2012) (holding that while the majority of child abuse
cases involve physical injury it is not required by the statute and finding sufficient
evidence that the defendant inflicted cruel and inhuman punishment on a child where the
defendant knowingly choked her with a hose around her neck until her eyes rolled back
and she became afraid she was going to die). The State argues that its expert suggested
that the child had suffered a substantial risk of harm to his body.
The problem with the State’s argument is the acquittal of the child endangerment
charge (Count III). That charge mirrored Count II in charging child endangerment in the
first degree by knowingly acting in a manner that created a substantial risk to the body of
the son by failing to provide adequate nutrition and sustenance to the child. Furthermore,
the evidence was that the family diet was consistent with their sincerely held faith and
4 with Appellant’s upbringing. The family ate the same food. It is not within the common
knowledge or common-law meaning that being denied dinner or desserts is cruel and
inhuman punishment. The facts in this case do not rise to the level of severe or
substantial punishment. There certainly is a dispute whether food choices qualify as cruel
and unusual punishment. There was evidence that the son was slightly built, but healthy,
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STATE OF MISSOURI, ) ) Plaintiff-Respondent, ) ) vs. ) No. SD32109 ) PETER D. HANSEN, ) Filed: April 18, 2014 ) Defendant-Appellant. )
APPEAL FROM THE CIRCUIT COURT OF GREENE COUNTY
Honorable J. Dan Conklin, Circuit Judge
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH DIRECTIONS
Peter D. Hansen (“Appellant”) was charged and convicted in a six-count
information with the class C felony of knowingly inflicting cruel and inhuman
punishment upon his son, who was less than seventeen years old, (1) by restricting him to
a cold bathroom without light, which was too small for the son to stretch out in, for hours
at a time, and (2) by restricting food. He was acquitted of the class C felony of
endangering the welfare of a child in the first degree by knowingly acting in a manner
that created a substantial risk to the body of the son by failing to provide adequate
1 nutrition and sustenance to the child.1 The court sentenced Appellant to three years
imprisonment on each count, to be served concurrently, suspended the execution of the
sentence, and ordered one hundred days of shock incarceration. Appellant brings two
claims of error, both claiming that the trial court erred in overruling his motion for
judgment of acquittal in that the State’s evidence failed to establish beyond a reasonable
doubt that Appellant knowingly inflicted cruel and unusual punishment upon his son in
either way. We agree that the trial court erred in not granting the judgment of acquittal
with regard to whether the restriction of food was cruel and unusual punishment, but
disagree with Appellant’s contention that the confinement was not cruel and unusual
punishment.
Appellant was raised in the Seventh Day Adventist Church. Seventh Day
Adventists practice a vegetarian lifestyle and encourage two, rather than three, meals per
day. Members are encouraged to eat a wide variety of natural foods, to drink six to eight
glasses of water a day, and to exercise.2 Appellant had custody of his two children, an
eleven-year-old girl and a fourteen-year-old boy. His family was evicted from their home
and lived in church buildings. They consumed mostly vegetables, grains, legumes, and
some fruit, adhering to the regimen of two meals per day, drinking sixty-four ounces of
water, and exercising. The children were home-schooled, but belonged to a church youth
organization which took them camping. They did not have a television but skateboarded
and bicycled. Appellant used two methods of punishment, restriction -- taking away
1 He was also acquitted of cruel and inhuman punishment to his daughter based on restricting food to her and of knowingly creating a substantial risk to the body by failing to provide adequate nutrition and sustenance to her. 2 There was evidence that Seventh Day Adventists live longer and healthier due to this lifestyle.
2 sweets, garnishes on their food, such as cheese3 or jelly, and five or six times denying
dinner -- and isolation -- where the children were isolated from the rest of the family in
the bathroom or another room.
The version of section 568.060 in effect at the time of the acts with which
Appellant was charged provided in part, “A person commits the crime of abuse of a child
if such person: (1) Knowingly inflicts cruel and inhuman punishment upon a child less
than seventeen years old[.]” Section 568.060.1, RSMo Cum. Supp. 1997.4 Cruel and
inhuman punishment was not defined in the statute. The current statute provides:
2. A person commits the offense of abuse or neglect of a child if such person knowingly causes a child who is less than eighteen years of age: (1) To suffer physical or mental injury as a result of abuse or neglect; or (2) To be placed in a situation in which the child may suffer physical or mental injury as the result of abuse or neglect.
Section 568.060.2, RSMo Cum. Supp. 2013. In State v. Brown, 660 S.W.2d 694 (Mo.
banc 1983), our Supreme Court indicated that the phrase “cruel and inhuman
punishment” has “a settled common-law meaning and are words of general and common
usage about which there is no great dispute as to meaning.” Id. at 698. The term
“punishment” has been defined as “severe, rough, or disastrous treatment.” State v.
Silvey, 980 S.W.2d 103,108 (Mo. App. S.D. 1998).
Count II of the amended information claimed that Appellant knowingly inflicted
cruel and inhuman punishment upon his son by restricting food from him. A key element
to the statute’s provision is that Appellant had to “knowingly inflict[] cruel and unusual
punishment.” Knowingly is defined as being aware “of the nature of his conduct or that
3 Much was made of the evidence that the family sometimes ate unusual food such as artichokes and Swiss chard. There was no evidence that eating artichokes or Swiss chard was in some way unhealthy for the family, nor were those particular foods only eaten by the son. 4 The legislature removed the phrase cruel and inhuman punishment from the statute in 2012.
3 those circumstances exist” or being “aware that his conduct is practically certain to cause
that result.” Section 562.016.3(1)-(2), RSMo 2000. The State claims that the evidence
demonstrated that Appellant knowingly subjected his fourteen-year-old son to severe
punishment by restricting food. As evidence that Appellant knowingly committed cruel
and inhuman punishment, the State claims that the family consumed two vegetarian
meals per day. The child was not allowed to eat whatever or whenever he wanted and
dinner was withheld about five or six times. As further evidence, the State notes that the
child was punished for allegedly stealing one dollar by not having ice cream with the
family. The State argues that it is “common sense” that the restriction of food was cruel
and inhuman.
The State admits that the majority of child abuse cases involve some sort of
physical injury; however a physical injury is not required. See State v. Hines, 377
S.W.3d 648, 657 (Mo. App. S.D. 2012) (holding that while the majority of child abuse
cases involve physical injury it is not required by the statute and finding sufficient
evidence that the defendant inflicted cruel and inhuman punishment on a child where the
defendant knowingly choked her with a hose around her neck until her eyes rolled back
and she became afraid she was going to die). The State argues that its expert suggested
that the child had suffered a substantial risk of harm to his body.
The problem with the State’s argument is the acquittal of the child endangerment
charge (Count III). That charge mirrored Count II in charging child endangerment in the
first degree by knowingly acting in a manner that created a substantial risk to the body of
the son by failing to provide adequate nutrition and sustenance to the child. Furthermore,
the evidence was that the family diet was consistent with their sincerely held faith and
4 with Appellant’s upbringing. The family ate the same food. It is not within the common
knowledge or common-law meaning that being denied dinner or desserts is cruel and
inhuman punishment. The facts in this case do not rise to the level of severe or
substantial punishment. There certainly is a dispute whether food choices qualify as cruel
and unusual punishment. There was evidence that the son was slightly built, but healthy,
and that he participated in bike riding and long hikes. No intelligence testing was done
before or after the child came into foster care. No blood testing or testing regarding
hormone levels were done of the son.5 This is an unusual and troubling case, but it would
be the first time that a conviction was obtained based on the sincere and religiously held
diet choice of the parents. These food choices and the slight deprivation alone cannot
stand as the basis for a claim that the son was the victim of severe, cruel, or unusual
punishment. Appellant’s first point is granted.
Appellant’s second point, however, does not have merit. Count I of the amended
information claimed that Appellant knowingly inflicted cruel and inhuman punishment
upon his son by isolating the child to a small bathroom for hours at a time.6 The room
was described as five-by-four with a toilet and sink. When authorities arrived to
investigate the situation, the temperature in the building was 58 degrees. Appellant’s son
was confined to the bathroom wearing only a long-sleeved t-shirt and thin flannel pants.
He did not have a coat. He had his arms crossed as if he were trying to keep warm. The
evidence was that the child was confined to the bathroom for his meals, for studying, and
5 The State’s expert relied upon the son’s percentage in the growth charts. The expert used the logic that the son was underfed because he gained weight after he came into foster care. It is a faulty premise that being in a higher weight category equates with better health. 6 The child generally testified about “the bathroom,” although he was kept in two bathrooms which were “about the same size.”
5 for sleep about five or six times with only his sleeping bag. At least one of these
punishments lasted more than a week. During these periods, Appellant’s son was not
allowed to have the light on unless he was doing school work. He was only permitted to
leave the bathroom for 15 to 30 minutes of exercise per day. One of the officers present
when the children were taken into protective custody stated the conditions were “worse
than what you would typically find in a prison-type environment[.]” There was no
religious basis for this punishment and certainly a reasonable jury could conclude that it
was within the common-law meaning of unacceptable punishment by parents.7 Point II is
denied.
The judgment of the trial court is affirmed in part, reversed in part, and remanded
with directions to vacate Appellant’s conviction and sentence for the Count II charge of
abuse of a child, to enter judgment of conviction on the Count I charge of abuse of a
child, and to sentence Appellant accordingly.
Nancy Steffen Rahmeyer, P.J. – Opinion Author
William W. Francis, Jr., C.J. – Concurs
Mary W. Sheffield, J. – Concurs
7 As troubling as the term “cruel and inhuman punishment” is, this punishment comports with a review of previous cases that upheld a cruel and inhuman punishment verdict.