Ellis v. State

WOODWARD, J. On February 7, 2007, appellant, Joseph Ellis, was indicted on charges of sexual abuse of a minor, sexual offense in the ⁵²⁹ fourth degree, sexual offense in the fourth degree by a person in a position of authority, indecent exposure, display of obscene material to a minor, and misuse of telephone facilities and equipment. The charges arose from the interactions between appellant, a high school teacher in Howard County, Maryland, and “S.S.”, a 17 year old student at appellant’s school. Before trial, the Circuit Court for Howard County denied appellant’s motion to suppress, which challenged the validity of the search warrants used in the investigation. Immediately prior to trial, appellant pled guilty to display of obscene material to a minor.

After a trial on the remaining counts, a jury found appellant guilty of sexual abuse of a minor, indecent exposure, and telephone misuse, and not guilty of both of the fourth degree sexual offenses. The circuit court sentenced appellant to a total of ten years’ incarceration, with five years suspended and five years probation. This appeal followed. Appellant presents three questions for our review, which we have rephrased: 1 1.

Did the circuit court err in denying appellant’s motion to suppress? 2. Was there sufficient evidence to convict appellant of sexual abuse of a minor? ⁵³⁰ 3. Did the sentencing court err or abuse its discretion in sentencing appellant? Finding no error, we affirm.

BACKGROUND The trial in the instant case occurred in January of 2008. The following is a summary of the evidence adduced at trial. In the Fall of 2006, appellant was a 25-year-old teacher of History and American Government at a high school in Howard County. During this time S.S., a 17-year-old senior at the school, and appellant began an increasingly friendly relationship.

Although S.S. had been a student in one of appellant’s classes the year before, she was currently neither a student in one of appellant’s classes nor a participant in any extracurricular activity supervised by appellant. In December of 2006, appellant gave S.S. his cell phone number and the two began communicating by text messages and phone calls. About the same time, S.S. and appellant began communicating on the computer by online instant messages. While at first innocent in tone, the communications became increasingly sexual, including references to appellant’s sexual history and preferred sexual activities.

Prior to the school’s winter break, appellant emailed to S.S. six photographs, four of which were admitted into evidence. Two of the photographs admitted into evidence showed appellant’s erect penis alongside a ruler. The other two photographs admitted into evidence showed an unidentified woman engaging in fellatio upon appellant. Appellant and S.S. later discussed the photographs via instant messaging.

In subsequent conversations, appellant indicated that he wanted to meet with S.S. at a park or hotel. One evening, in the course of communicating with S.S. by instant message, appellant noted that his penis was “better in person” and invited S.S. to visit him in his classroom the following day. The next day, S.S. arrived with a friend at appellant’s classroom shortly after classes had finished for the day. The hallways of the school building at that time were almost ⁵³¹ empty, with maybe one or two people walking by.

While S.S.’s friend remained in the hallway, S.S. entered appellant’s classroom, whereupon appellant told S.S. to look down where his penis was visible. When S.S. told appellant to put his penis back in his shorts, appellant grabbed S.S.’s hand and attempted to get her to touch his penis. S.S. did not touch appellant’s penis and, instead, departed the classroom. Upon returning to school in January of 2007 after the school’s winter break, S.S. reported these events to a teacher and guidance counselor, and the police were contacted.

On January 5, 2007, two Howard County Police Detectives went to S.S.’s home. There they confiscated S.S.’s cell phone and computer and persuaded her to place a recorded, one-party consent call to appellant. In the course of that call, appellant said, among other things, that he showed S.S. his penis because he “wanted [her] to look at it.” Appellant was arrested later that day. On the same day, Howard County Police Detectives obtained and executed search warrants for appellant’s residence and vehicle.

On January 12, 2007, two additional search warrants were obtained for the contents of a laptop computer owned by the high school and used by appellant and for the contents of appellant’s cell phone, which had been seized at the time of appellant’s arrest. On February 7, 2007, a grand jury returned a six-count indictment against appellant, alleging violations of Maryland Code Ann. (2002, Supp.2008), Criminal Law Article (“CR”) § 3-602 (Sexual abuse of a minor), § 3-308(b) (Sexual offense in the fourth degree), § 3-308(c) (Sexual offense in the fourth degree—sexual abuse of a minor student by a person in a position of authority), § 11-107 (Indecent exposure), § 11-203(b)(1) (Display of obscene material to a minor), and § 3-804(a) (Misuse of telephone facilities and equipment). On March 15, 2007, appellant filed a motion to suppress the evidence seized pursuant to the search warrants issued on January 5, 2007, and the additional warrants issued on January 12, 2007. On July 9, 2007, a search warrant was obtained to examine the three computers seized from appellant’s resi ⁵³² dence, as well as the laptop computer (which had not been forensically examined as directed by the January 12, 2007 warrant).

At the hearing on the motion to suppress on October 31, 2007, the State introduced three of the search warrants: (1) the January 5, 2007 search warrant for appellant’s residence, (2) the January 12, 2007 search warrant for the contents of appellant’s cell phone, and (3) the July 9, 2007 search warrant for the contents of the four computers. The State proffered that only evidence recovered pursuant to those warrants would be utilized in the prosecution of appellant. Appellant amended his motion orally to include the July 9, 2007 search warrant. At the conclusion of the hearing, the circuit court denied appellant’s motion to suppress.

Prior to trial, appellant pled guilty to the charge of displaying obscene material to a minor. Appellant was tried on the remaining charges on January 7-9, 2008. At the conclusion of the trial, the jury found appellant guilty of sexual abuse of a minor, indecent exposure, and telephone misuse, and not guilty of the fourth degree sexual offenses. On April 25, 2008, the circuit court sentenced appellant to three years’ incarceration for indecent exposure, a consecutive one year term for telephone misuse, a consecutive one year for display of obscene material to a minor, and ten years for sexual abuse of a minor, the last to run concurrent with the other sentences, with five years suspended and five years probation.

This timely appeal followed. DISCUSSION I. The Warrants Appellant argues that the circuit court erred in denying his motion to suppress the photos and other evidence garnered from appellant’s computers and cell phone, which were seized pursuant to search warrants signed by a district court judge. Appellant contends that the affidavits, upon which the search warrants were based, failed to provide a substantial basis for a ⁵³³ finding of probable cause. In particular, appellant complains that the warrants contained inapplicable boilerplate language regarding child pornographers, failed to state how the victims knew that they were communicating with appellant, and failed to state the dates of the alleged crimes. 2 Standard of Review The rubric that we use to review a defendant’s challenge to a search warrant, and the evidence seized and utilized as a result, is well established.

We begin with the language of the Fourth Amendment, which states that “ ‘no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized’; [and which] is applicable to the states by the [Fourteenth [A]mendment.” Birchead v. State, 317 Md. 691, 700 , 566 A.2d 488 (1989) (quoting Mapp v. Ohio, 367 U.S. 643 , 81 S.Ct. 1684 , 6 L.Ed.2d 1081 (1961)). “Probable cause means a ‘fair probability that contraband or evidence of a crime will be found in a particular place.’ ” Ferguson v. State, 157 Md.App. 580, 592 , 853 A.2d 784 (2004) (quoting Illinois v. Gates, 462 U.S. 213, 238 , 103 S.Ct. 2317 , 76 L.Ed.2d 527 (1983)). Probable cause is “a fluid concept—turning on the assessment of probabilities in particular factual contexts—not readily, or even usefully, reduced to a neat set of legal rules.” Gates, 462 U.S. at 232 , 103 S.Ct. 2317 . “When making a probable cause determination, the issuing court is confined to the averments contained in the search warrant application.” Ferguson, 157 Md.App. at 592 , 853 A.2d 784 . Our review of the issuing court’s decision is ⁵³⁴ equally confined to the contents of the application and affidavit: When reviewing the basis of the issuing judge’s probable cause finding, we ... confine our consideration of probable cause solely to the information provided in the warrant and its accompanying application documents. We do not consider evidence that seeks to supplement or controvert the truth of the grounds advanced in the affidavit.

This principle is known as the “four corners rule.” Greenstreet v. State, 392 Md. 652, 669 , 898 A.2d 961 (2006) (citations omitted). “When reviewing the judge’s decision to issue a search warrant, we do not undertake a de novo review, but, instead, pay great deference to the magistrate’s determination.” Ferguson, 157 Md.App. at 592-93 , 853 A.2d 784 . We recently stated that the “difference between a de novo appraisal of a warrant itself and the more deferential appraisal of the warrant-issuing judge’s decision to issue the warrant” is crucial to our review of search warrants. State v. Jenkins, 178 Md.App. 156, 163 , 941 A.2d 517 (2008). “We determine first whether the issuing judge had a substantial basis to conclude that the warrant was supported by probable cause. We do so not by applying a de novo standard of review, but rather a deferential one.

The task of the issuing judge is to reach a practical and common-sense decision, given all of the circumstances set forth in the affidavit, as to whether there exists a fair probability that contraband or evidence of a crime will be found in a particular search. The duty of a reviewing court is to ensure that the issuing judge had a ‘substantial basis for ... concluding] that probable cause existed.’ ” Id. (quoting Greenstreet, 392 Md. at 667-68 , 898 A.2d 961 ) (citation omitted) (emphasis and alterations in original). “[T]he more deferential substantial-basis standard governs] judicial review generally, nisi prius suppression hearing courts and appellate courts alike.” Jenkins, 178 Md.App. at 163 , 941 A.2d 517 . “In a review posture such as the present ⁵³⁵ one, the deference that is owed by us -is to the warrant-issuing judge, just as the deference of the suppression hearing judge was owed to the warrant-issuing judge.” Id. at 170 , 941 A.2d 517 . “As a practical matter, that means that, at the very least, we will accept [the issuing judge’s] implicit fact-finding, unless clearly erroneous, and, beyond that, we will view the factual recitations in the warrant application in the light most favorable to the State.” Id. at 174 , 941 A.2d 517 . “ ‘The U.S. Supreme Court explained in Gates that the purpose of this standard of review is to encourage the police to submit to the warrant process.’ ” Id. at 163, 941 A.2d 517 (quoting Greenstreet, 392 Md. at 667-68 , 898 A.2d 961 ). Extending great deference to the magistrate’s decision acts as a means of encouraging the police to submit to the warrant process.

A grudging or negative attitude by reviewing courts toward warrants is inconsistent with the Fourth Amendment’s strong preference for searches conducted pursuant to a warrant; courts should not invalidate warrants by interpreting affidavits in a hypertechnical, rather than a commonsense, manner. Furthermore, in cases wherein it is not easy to determine whether the affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants. Ferguson, 157 Md.App. at 593 , 853 A.2d 784 (citations and quotations omitted). The Applications and Affidavits In the instant case, the police applied for and were granted search warrants in order to search appellant’s residence, vehicle, cell phone, laptop computer, and computers seized from appellant’s residence.

The affidavits in support of the search warrants were prepared by Detective Michael Brady (affidavit regarding appellant’s vehicle, residence, and cell phone), Detective Denise Francis (regarding the laptop computer), and Corporal Eric Kruhm (regarding the computers seized from appellant’s residence and the laptop computer). ⁵³⁶ Each application and affidavit followed substantially the same form. The application and affidavit prepared by DFC Brady regarding appellant’s residence is representative, and includes the language and passages that appellant complains about in this appeal. For the purpose of our analysis, we will examine that application and affidavit. The application began with a statement indicating that the applicant had “reasonable grounds (probable cause) to believe that on or in the ... described premises ... is evidence in relation to the commission of the following crime(s), to wit:” CR §§ 3-601 (child abuse), 3-324 (solicitation of minor), and 3-308 (sexual offense in the fourth degree).

The affidavit, in turn, began with a statement identifying the affiant, DFC Brady, and his rank, assignment, investigative duties, law enforcement background, training background, educational attainment, and history of giving sworn testimony. The affidavit then set forth the following summary of the investigation by police: On January 5, 2007 Detectives, at the Child Advocacy Center, received a sexual child abuse case occurring in Howard County. The nature of the case initially involved three juvenile female victims that attend [ ] High School. Each victim is under the age of 18 years old.

In the initial report received from the school each victim advised that they had received text messages from a teacher at the school, identified as Joseph Samuel Ellis (W/M DOB: 4/19/81). One Victim stated that she had received text messages and instant messages of a sexual nature. The second victim advised that Ellis made sexually inappropriate comments to her such as, “your breasts looked really nice in that shirt today.” The third victim stated that Ellis had sent her nude pictures, through email, of himself and a female subject whom she believes to be Ellis’ fiance that is also a teacher in another school. That victim also stated that Ellis has exposed his penis to her and also grabbed her hand and attempted to get her to touch his penis.

DFC Brady conducted several computer checks on Ellis. The Motor Vehicle Administration check revealed that Ellis ⁵³⁷ lives at ... Columbia, Howard County, Maryland. That check also revealed that Ellis does not have any vehicles registered in his name.

A further check provided that Ellis did not have a criminal history nor did he have any significant local history. On January 5, 200[7] at approximately 1200 hours DFC Branch, DFC McDaniel, and S/W Biter responded to [ ] High School to interview the victims in this case. The first victim in this case, referred to as victim # 1, provided the following information: • She stated that she received text messages, from Ellis via cellular telephone, in reference to “hooking up” and meeting somewhere. • She stated that she had email correspondence with Ellis. • She stated that during that correspondence she received pictures of Ellis’ penis, Ellis’ penis inside a female subject, Ellis’ penis and a ruler, and a female subject giving Ellis oral sex. The second victim, referred to as victim # 2, provided the following: • She stated that Ellis sent her text messages, via cellular telephone, of a sexual nature. • She stated that in those messages Ellis stated that she looked hot and her shirt made her breasts look good. • She stated that she met Ellis over the summer at a park, in Columbia, Howard County, Maryland, where he “felt her up” on her breasts and vagina over her clothes. • She stated that Ellis told her he would buy alcohol for her. • She stated that she communicated with Ellis through “IMing” (Instant Messaging) and over the phone.

The third victim, referred to as victim # 3 provided the following: • She stated that she never gave Ellis her cell phone number. • She stated that she talked to Ellis over the computer by IM’s and that the IM’s were of a sexual nature. ⁵³⁸ • She stated that she had exchanged IM’s with Ellis last year and a few weeks ago. • She stated that she only talked to Ellis over the computer. All three victims are under the age of 18, attend [ ] High School, and the suspect is a teacher at [ ] High School. The affidavit went on to include 18 paragraphs of boilerplate information about child pornographers and their habits, particularly concerning their use of computers. The affidavit then proceeded to discuss, in 10 paragraphs, the use of computers in crime more generally.

The affidavit concluded by specifying the place to be searched, and included a list of items to be seized. Appellant’s Allegations of Error Appellant’s first contention is that “[i]n the affidavits for the warrants in this case, the officers set forth lengthy, yet completely unsupported, conclusions that [appellant] fit the profile of a ‘child pornographer’ and ‘preferential child molester.’ ” Moreover, according to appellant, “there is nothing in the affidavits from which to conclude that the affiants had any special training in the specialized field of child sex offenses to support their conclusory statements regarding their knowledge of the habits of child pornographers and preferential child molesters.” The short answer to this contention is that the suppression court agreed with appellant and excluded “the child sex offense boiler plate language” in making its determination of whether there was a substantial basis for the issuing judge to conclude that probable cause existed. 3 The suppression court reasoned: [Tjhere’s a boiler plate language as it relates to investigation of child sex offenses in general, and I’m using that as a ⁵³⁹ general term, because [defense counsel is] absolutely correct, there’s—this is not a pedophile case. If you look at the ages of the girls involved, it is not a pedophile cases.... I find that the investigation of child sex offenses is a specialized field, it’s a field in which there has to be special training and special education.

I see no evidence that there’s significant training in it and I have no knowledge and have no reason to believe that there is a—any significant training in the field of child sexual—investigating child sexual offenses, as part of the more standard police training and standard police experience, nor is there gaining that type of information through your standard life experience. And in this case, Detective Brady makes a conclusory statement that he has this training and I think it’s at glaring odds with how other affiant’s have handled this situation. And for that reason I’m gonna find that the—there’s an insufficient showing, within the four corners of the warrant, to support the use of the child sex offense boiler plate language in making a determination of probable cause. Contrary to appellant’s contention, nowhere in the affidavit was appellant described as a child pornographer or preferential child molester.

The boilerplate language described the known habits of child pornographers and preferential child molesters in general, without any reference to appellant. Although the implication of the boilerplate language being included in the affidavit was that the police suspected appellant of being a child pornographer or molester, such implication is clearly at odds with the stated facts of the investigation and the crimes charged. Therefore, the suppression court was eminently correct in striking the boilerplate language concerning child sex offenses and reviewing the affidavits on the remaining facts as they were set forth. ⁵⁴⁰ Appellant’s second argument is that “the affidavits allege no facts supporting probable cause to seize the computers from [appellant’s] home.” In support of this contention, appellant argues that “the [victims] did not say how they knew they were corresponding with [appellant]” when using emails and instant messaging. Finally, appellant argues that the “affidavits are ... constitutionally deficient because they lack any information as to when the events alleged therein transpired.” (Emphasis in original).

We reject both arguments. The facts articulated in the representative affidavit set forth above demonstrated that the victims were communicating with appellant through cell phone text messages and computer-based emails and instant messages, in addition to in-person communications with appellant. Thus this case is not one in which the victims interacted only through faceless, anonymous communications- over the internet with a stranger. The victims here were students at the high school where appellant taught, and two of the students alleged crimes of a sexual nature by appellant as part of, or connected with, the communications between appellant and the victims.

The affidavit, therefore, contained sufficient evidence, as appellant puts it, to establish “probable cause to believe that [appellant] was actually the person communicating with” the victims. There was also sufficient evidence in the affidavit to make the reasonable inference that, in the course of the emails and instant messages between appellant and the three victims, appellant utilized his personal computer in his home and that evidence of those communications would remain on that computer as evidence. Although the facts of the investigation as recounted in the affidavit are not replete with specific dates of the alleged incidents, the affidavit was not, as appellant claims, “devoid of any facts as to the date or time of any of the alleged events described by the witnesses.” The affidavit reasonably described a relatively recent and ongoing course of communications between appellant and the victims. In particular, victim # 2 referred to a meeting with appellant “over the summer,” which can be read as a reference to the summer of 2006, just ⁵⁴¹ four to six months prior to the affidavit.

Victim # 3 “stated that she had exchanged IM’s with [appellant] last year and a feiv iveeks ago,” indicating that communications described had occurred recently. To demand particular dates for each incident would be “hypertechnical” and contrary to a commonsense reading of the affidavit. Therefore, there was sufficient information to “permit a proper staleness inquiry.” We conclude that the suppression court did not err in its determination that the information contained in the search warrants and accompanying application documents, excluding the offending boilerplate language, articulated a substantial basis for the issuing-judge to conclude that probable cause existed to search the places and items specified in the warrants for evidence of the crimes alleged. 4 II. A Person Who Has Responsibility for the Supervision of a Minor Appellant argues that the trial court erred in refusing to grant his motion for judgment of acquittal on the charge of ⁵⁴² sexual abuse of a minor in violation of CR § 3-602. 5 According to appellant, “[t]he evidence was insufficient for want of proof that [appellant] was a ‘person who has permanent or temporary care or custody or responsibility for the supervision of a minor[,]’ ” under CR § 3—602(b)(1).

In particular, appellant contends that appellant’s supervision of S.S. ceased after the school day ended, that there was a temporal break in the supervisory relationship between appellant and S.S., and that the alleged abuse was not “immediately connected” to a school activity. We disagree and explain. “The standard for determining whether there is sufficient evidence to support a conviction ‘is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” Anderson v. State, 372 Md. 285, 291-292 , 812 A.2d 1016 (2002) (quoting Burch v. State, 346 Md. 253, 272 , 696 A.2d 443 (1997)). “Whether a person has responsibility for the supervi ⁵⁴³ sion of a minor child in contemplation of Art. 27 § 35C,[ 6 ] is a question of fact for the jury.” Id. at 292, 812 A.2d 1016 . CR § 3-602(b)(l) states, in relevant part, that any person who has “responsibility for the supervision of a minor may not cause sexual abuse to the minor.” When the child abuse statute was originally enacted in 1963, the class of persons to whom the statute applied was limited to “[a]ny parent, adoptive parent or other person who has the permanent or temporary care or custody of a minor child.” Act of Apr. 30, 1963, ch. 743, 1963 Md. Laws 1536 . Several years later, the General Assembly expanded the class of persons subject to the statute to any person who has “responsibility for the supervision of a minor child.” Act of Apr. 29, 1966, ch. 221, 1966 Md. Laws 466 .

The meaning of this statutory language, however, was not addressed by the Court of Appeals until 1979 in the case of Pope v. State, 284 Md. 309 , 396 A.2d 1054 (1979). In Pope , the Court first observed: The child abuse statute speaks in terms of a person who “has” responsibility for the supervision of a minor child. It does not prescribe how such responsibility attaches or what “responsibility” and “supervision” encompass. A doubt or ambiguity exists as to the exact reach of the statute’s provision with respect to “has responsibility for the supervision of,” justifying application of the principle that permits courts in such circumstances to ascertain and give effect to the real intention of the Legislature.

Id. at 322 , 396 A.2d 1054 . The Court went on to ascertain the intent of the Legislature in adopting the subject language in the child abuse statute: [W]e think it to be self-evident that responsibility for supervision of a minor child may be obtained only upon the mutual consent, expressed or implied, by the one legally ⁵⁴⁴ charged with the care of the child and by the one assuming the responsibility. In other words, a parent may not impose responsibility for the supervision of his or her minor child on a third person unless that person accepts the responsibility, and a third person may not assume such responsibility unless the parent grants it. So it is that a baby sitter temporarily has responsibility for the supervision of a child; the parents grant the responsibility for the period they are not at home, and the sitter accepts it.

And it is by mutual consent that a school teacher has responsibility for the supervision of children in connection with his academic duties. Id. at 323-24 , 396 A.2d 1054 (emphasis added). Finally, the Court discussed the duration of the responsibility for the supervision of a minor once that responsibility has been placed in a third person: On the other hand, once responsibility for the supervision of a minor child has been placed in a third person, it may be terminated unilaterally by a parent by resuming responsibility, expressly or by conduct. The consent of the third party in such circumstances is not required; he may not prevent return of responsibility to the parent.

But, of course, the third person in whom responsibility has been placed is not free to relinquish that responsibility without the knowledge of the parent. For example, a sitter may not simply walk away in the absence of the parents and leave the children to their own devices. Id. at 324 , 396 A.2d 1054 (emphasis added). In Anderson , the Court of Appeals was faced with the same question as is presented in the instant appeal: whether the evidence was sufficient to establish that the petitioner, a high school teacher, was a person having temporary responsibility for the supervision of a minor, a student, within the meaning of the child abuse statute. 372 Md. at 287 , 812 A.2d 1016 .

In Anderson , the victim was a fourteen-year-old girl who was a student at the high school where the petitioner taught. Id. at 288 , 812 A.2d 1016 . The victim was not in any of the ⁵⁴⁵ petitioner’s classes, nor was she in any extracurricular activity run by petitioner. Id.

The victim met the petitioner through one of her teachers, Ms. Riggs. Id. The petitioner would come into Ms. Riggs’ classroom where the victim helped out after school, and the petitioner would occasionally help the victim with math problems. Id.

The incident giving rise to the criminal prosecution of the petitioner occurred on the last day of the school year, June 9, 2000. Id. at 289 , 812 A.2d 1016 . The school day ended at noon and the victim stayed after school with Ms. Riggs to help her with her room. Id.

The petitioner met the victim, Ms. Riggs, and Ms. Riggs’ daughter in the hallway and invited them to lunch. Id. All four left the school property in the petitioner’s car, had lunch at a nearby McDonald’s restaurant, and returned to school about one-half hour later. Id.

The victim then resumed helping Ms. Riggs with her room. Id. The petitioner asked the victim if she wanted a ride home; she agreed; and sometime after 2:00 p.m. the petitioner and the victim left the school in the petitioner’s car. Id.

When driving the victim home, the petitioner invited the victim to his house to play a game of pool, and when she accepted, the petitioner drove her to his house. Id. There the petitioner and the victim had sexual intercourse. Id. at 290 , 812 A.2d 1016 .

The petitioner was convicted of child abuse under Article 27, § 35C, the predecessor to CR § 3-602, and his conviction was affirmed by this Court in a reported opinion, Anderson v. State, 142 Md.App. 498, 515 , 790 A.2d 732 (2002). Before the Court of Appeals, the petitioner contended that the evidence was insufficient to sustain his conviction because a necessary element of the child abuse statute was missing,