ny person responsible for his care or support, whether legally obligated to do so or not, has caused or allowed to be caused upon said child sexual abuse, sexual exploitation, emotional
abuse, mental injury,
nonaccidental physical injury or other maltreatment. Provided, however, that physical discipline, including spanking, performed on a child by a parent, guardian or custodian in a reasonable manner shall not be deemed abuse under this section.
(Emphasis added).
¶ 32. The supreme court first defined serious bodily harm in Yates v. State, 685 So.2d 715 (Miss. 1996), overruled by Buffington v. State, 824 So.2d 576, 580 (15) (Miss. 2002). The supreme court adopted the following definition: "`serious bodily injury' means bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ." Id. at 720 (citation omitted). The Yates court further found that the only distinction between felony child abuse and misdemeanor child abuse is the element of serious bodily harm, stating:
The elements necessary to prove felonious child abuse are whether Yates did: (1) willfully (2) cause (3) serious bodily harm (4) to a child.
. . . .
[A]s to misdemeanor child abuse, the elements to consider include whether Yates did: (1) willfully (2) cause (3) non-accidental physical injury (4) to a child.
Id. at 719. Thus, following the
Yates decision, the prosecution was required to show injuries resulting in a substantial risk of death or "serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ" to prove the required elements of felony child abuse.
¶ 33. In Wolfe v. State, 743 So.2d 380, 385 (¶ 24) (Miss. 1999), a plurality opinion of the supreme court adopted a different definition of serious bodily harm in the context of felony child-abuse cases. The Wolfe decision held that serious bodily harm should be defined as: "bodily injury which creates a substantial risk of death, or permanent or temporary disfigurement, or impairment of any bodily organ or function." Id. (emphasis added). This lower threshold of proof was met by strong dissent. Justice McRae stated the following:
Furthermore, despite the fact that the majority warns that this case should in no way "be construed as an attempt to prevent parents, teachers and other custodians involved in child care from properly disciplining their children[,]" I fear that it will do just that. Redefining "serious bodily injury" to include the risk of temporary disfigurement means that any parent who leaves a bruise or red spot on a child as the result of a well-deserved spanking is at risk of being found guilty of felony child abuse.
Id. at 388 (¶ 45) (McRae, J., dissenting).
¶ 34. Despite the fears of the dissenting justices, the plurality majority opinion in Wolfe was adopted by a majority of the supreme court in Buffington, 824 So.2d at 580 (¶ 15), which affirmatively overruled Yates. The supreme court held that the appropriate definition of serious bodily harm as used in the felony child-abuse statute is "bodily injury which creates a substantial risk of death, or permanent or temporary disfigurement, or impairment of any function of any bodily organ or function." Id, Buffington is the controlling precedent on this issue in this state, and "[t]his Court, sitting as an intermediate appellate court, is bound by established precedent as set out by the Mississippi Supreme Court and we do not have the authority to overrule the decisions of that court." Bevis v. Linkous Constr. Co., 856 So.2d 535, 541 (¶ 18) (Miss.Ct.App. 2003) (citation omitted).
¶ 35. Henry's argument on appeal is essentially the same argument as the dissenting justices in Wolfe. Henry claims there is no ascertainable standard to objectively determine whether one's actions in spanking or bruising a child constitute misdemeanor or felony child abuse. However, because this argument was addressed by the dissenting justices in Wolfe, it is clear that the supreme court was fully aware of the argument when it issued its decision in Buffington to adopt the standard used by the plurality in Wolfe.
¶ 36. Henry concedes that the circuit court followed the law as set out by the supreme court in Buffington. Medical testimony at trial unequivocally proved that Jonathan's severe bruising was a temporary disfigurement of a bodily organ. Henry submits that Buffington should be reversed because it is based on an unconstitutional interpretation of the phrase serious bodily harm; however, this Court lacks the authority to grant such relief.
¶ 37. THE JUDGMENT OF THE LOWNDES COUNTY CIRCUIT COURT OF CONVICTION OF FELONY CHILD ABUSE AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH FIVE YEARS OF POST-RELEASE SUPERVISION IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
KING, C.J., LEE AND MYERS, P.JJ., IRVING, BARNES, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR.