Does a sleeping child satisfy Utah's domestic violence in presence of child statute? State v. Diviney Explained

The Utah Court of Appeals addressed an important question in State v. Diviney regarding what constitutes domestic violence “in the presence of a child” under Utah law. The case clarifies that the statutory requirement focuses on possibility rather than actual perception.

Background and Facts

Larry Diviney was convicted of domestic violence in the presence of a child after beating his wife Ella with a baseball bat in their basement apartment. During the assault, their young child was asleep in a nearby bedroom with the door “cracked open.” Ella escaped and fled to a convenience store, where she reported the abuse to police. Diviney claimed an intruder was responsible for the injuries.

Key Legal Issues

The primary issue was whether Utah Code section 76-5-109.1(1)(c)(ii) was satisfied when the child was asleep in a room with an open door during the domestic violence. The statute defines “in the presence of a child” as “having knowledge that a child is present and may see or hear an act of domestic violence.” Diviney argued that a sleeping child could not satisfy this requirement.

Court’s Analysis and Holding

The Court of Appeals focused on the statutory word “may” in analyzing the requirement. The court noted that “may” indicates possibility or discretion, requiring only that “a possibility existed that the child would or could hear or see the domestic violence.” The court found sufficient evidence that the child could have heard the violence through the open bedroom door, even while sleeping. The court noted that children can wake naturally or due to commotion, may have heard the violence and returned to sleep unnoticed, and that humans can hear while asleep.

Practice Implications

This decision establishes that Utah’s domestic violence statute requires only the possibility that a child may perceive domestic violence, not actual perception. The physical proximity of the child and circumstances creating the possibility of seeing or hearing are sufficient. Defense counsel should focus on whether the statutory elements can be met based on the specific facts, understanding that sleeping children in nearby rooms with open doors will likely satisfy the requirement. The ruling also demonstrates the court’s deferential review of sufficiency of evidence challenges to directed verdict motions.