B. Analysis
15 Tina Nance, Tye's schoolteacher, testified that on the morning of August 28, 1997, Tye told her he had been spanked and had “a big bruise.” Tye told her that it hurt him to sit in his chair because he was sore, and he would not be able to run at recess or in his P.E. class because of the soreness. Ms. Nance also observed that Tye had difficulty moving and walking. Ms. Nance testified that she went with Tye to the school nurse to obtain a written excuse for Tye's P.E. class. At the nurse's office, Ms. Nance viewed Tye's bruises and testified that the bruises were black and dark purple and approximately the size of a grapefruit on each buttock.
Lana Burson, the school nurse, testified that Tye had severe bruising with black, blue, and red coloring. Ms. Burson also viewed Wendy's buttocks and stated that both buttocks had dark black and blue bruises with red swollen areas, approximately ten to twelve centimeters in size. Ms. Burson took pictures of Wendy's buttocks. The pictures were entered into evidence by the State.
After Ms. Burson viewed Tye and Wendy, she contacted the Briscoe County Sheriff and Child Protective Services. She opined that she had 13 years experience as a nurse, and based on her experience, Tye's bruising was caused from “extensive trauma, force.”
Two other school officials also testified for the State. Patsy Towe, teacher and school counselor, stated that she saw all three children that morning. She viewed Wendy's buttocks and testified they were covered with black, blue, and purple bruises. She also observed that Chris was limping, and testified that he told her “he'd gotten a whipping the night before and that he had blisters.” Larry Mantle, teacher and football coach, viewed Chris's and Tye's buttocks during the morning and testified that black, purple, green, and red bruises covered the buttocks of both boys. He also stated that he had never seen bruises of that particular size before.
Sheriff Max Whitworth testified that he responded to a call from Ms. Burson, and saw Chris, Wendy, and Tye during the morning of August 28, 1997. He also viewed and photographed Chris's and Tye's buttocks and testified that both boys had swollen buttocks with red, purple, and black bruises. Sheriff Whitworth seized the wooden boat oar. The State introduced the oar into evidence. Sheriff Whitworth testified that his department had no prior reports of appellant's alleged abuse of his children.
Tye and Wendy were called to testify about their spankings during the State's case-in-chief. Both Tye and Wendy testified that appellant spanked them with the boat oar because neither one of them or Chris admitted to breaking the thermometer. Tye verified that he told his schoolteacher he needed an excuse for his P.E. class because his buttocks hurt. Wendy also verified that after all the children received their first three “licks,” she and Tye were crying and asked Chris to admit he broke the thermometer. Also, Wendy stated that the boat oar broke while the children were being spanked, and she thought it broke while Chris was being spanked.
Dr. Scott Blakeman testified on behalf of appellant. Dr. Blakeman saw the children during an office visit on September 3, 1997, approximately one week after the spankings occurred. Dr. Blakeman's medical specialty is in family practice, and Child Protective Services scheduled the appointment for the children. He testified that the children's bruises were “pretty much almost completely gone in a week.” He stated that severe bruises would take approximately two and one-half weeks to heal. Although Dr. Blakeman testified that the children were not in pain when he saw them, he agreed that based upon the State's photographs of the children's buttocks, the bruises would be painful.
Both appellant and his wife testified. Mrs. Assiter testified that she and her husband noticed the children's bruises the evening of the spankings, and her husband apologized to the children because “he didn't mean to spank them, you know, so hard that it would hurt their bottoms like that.” She also stated that Tye told her the morning after the spankings, “My bottom is sore.” During cross-examination, Mrs. Assiter testified that the children were yelling and crying after they were first spanked with the boat oar.
Appellant testified that he previously spanked the children on the bottom of their feet as a form of discipline, but this proved to be ineffective. Appellant claimed to also use other methods to discipline the children, including “timeouts” and removal of privileges. As a last resort, appellant testified that he spanked the children's buttocks with a hand, belt, or paddle. Appellant testified that he had used the boat oar to spank the children on previous occasions,5 but the children were not bruised on these occasions, nor did he intend to cause bruising by the spankings in question. Appellant acknowledged that he intended for the spankings to hurt a little bit as a form of punishment. He acknowledged that the children were crying loudly after he gave them their first three “licks.” Finally, appellant stated that he apologized to the children when he discovered their bruises and told them that the spankings were deliberate because they did not tell the truth about the thermometer, but that he did not intend to bruise them.