DOMESTIC ASSAULT AND BATTERY IN THE
PRESENCE OF A MINOR
So, what does “in the presence” actually mean? As the statutes and committee notes below indicate, “in the presence” is a very broad term. A child, ANY child, being physically present or that “may see or hear” is sufficient to establish the facts necessary to charge Domestic Assault and Battery in the presence of a minor. Therefore, a child, of any age, being present within a household, even if in a completely different room or part of the home, whether awake or even asleep factually, is enough to establish the charge of Domestic Assault and Battery in the Presence of a Minor.
The minor being present increases the minimum range of punishment from zero to one year in the county jail, to a minimum of six months up to one year in the county jail.
The mere presence of a minor child in the home does not automatically trigger this charge. It is possible that this charge could be discretionary with the arresting law enforcement officers but ultimately the charging decision rests with the district attorney’s office when the information (formal charge) is filed. As the presence of a child can impact the outcome of your case, be sure to let your attorney know whether a child was present in the home or wherever the alleged assault occurred.
Oklahoma Statute Title 21 O.S. §644 (G) states:
“Any person convicted of domestic abuse as defined in subsection C of this section that was committed in the presence of a child shall be punished by imprisonment in the county jail for not less than six (6) months nor more than one (1) year, or by a fine not exceeding Five Thousand Dollars ($5,000.00), or by both such fine and imprisonment. Any person convicted of a second or subsequent domestic abuse as defined in subsection C of this section that was committed in the presence of a child shall be punished by imprisonment in the custody of the Department of Corrections for not less than one (1) year nor more than five (5) years, or by a fine not exceeding Seven Thousand Dollars ($7,000.00), or by both such fine and imprisonment.”
Basically, stating that any act of domestic assault and battery that occurs in the presence of a minor child, is subject to the punishments proscribed above.
The Oklahoma Uniform Jury Instructions (instructions which are given to a jury) state that a defendant can only be found guilty IF the jury is convinced beyond a reasonable doubt that the defendant did each of the FOLLOWING:
“No person may be convicted of domestic abuse in the presence of a child unless the State has proved beyond a reasonable doubt each element of the crime. These elements are:
Third, attempting or offering to use force or violence; and
Fourth, the use of force or violence;
Fifth, was against the person of a [Specify Applicable Relationship in 21 O.S. Supp. 2011, § 644(C)].
Sixth, was committed in the presence of a child.”
The same above jury instruction provides a note that says, “A child is any child whether or not related to the victim or the defendant. In the presence of a child means in the child's physical presence or the defendant knows a child is present and may see or hear an act of domestic violence.”
Although the laws may seem easy to understand, they are not. Many variables come into play when you are charged with Domestic Assault and Battery in the Presence of a Minor. You need a defense attorney that understands the laws and one who is devoted to you and your case. Call today to schedule a consultation with the Berlin Law Firm for the representation you need.