In this Davidson County case, defendant appealed his convictions for possession of a firearm by a felon and misdemeanor child abuse, arguing (1) insufficient evidence to support the possession of a firearm conviction; and (2) error in the jury instructions for child abuse. The Court of Appeals found sufficient evidence in (1), but error in (2), reversing defendant’s conviction for child abuse and remanding for a new trial.

In August of 2022, defendant, his fifteen-year-old son (the alleged victim of abuse in this case), and the mother of his son all lived in an apartment together in Lexington. The son went to his girlfriend’s house for a birthday party, and later defendant came to pick him up. Upon arriving, defendant noticed his son was wearing one of defendant’s shirts, and he took a pair of needle-nosed pliers and twisted the top of his son’s chest until his son began to cry. After this, defendant called the police to report that his son was missing, and police found the son sleeping in a park on a picnic table. The officers took a statement from the victim, as well as a statement from the girlfriend’s father who witnessed the pliers incident. Defendant was charged with misdemeanor child abuse and reported to DSS, and subsequently a child protective services worker conducted a home visit. During that visit, another child in the apartment pulled a gun out from under the couch, and the worker called police to secure the weapon. Defendant told the officers that he “found” the gun, and no other residents claimed ownership of the weapon.

For (1), defendant argued a lack of evidence showing he actually or constructively possessed the firearm found under the couch. The Court of Appeals disagreed, noting that although defendant did not have exclusive control of the location where the gun was found, he did tell officers “I found it” when asked about the gun. Slip Op. at 9. This “acknowledgement of possession” by defendant disposed of his argument that there was no evidence of possession. Id.

Moving to (2), defendant argued the jury instructions permitted the jury to convict on an offense not supported by the indictment. In State v. Fredell, 283 N.C. 242 (1973), the Supreme Court explained that G.S. 14-318.2(a) provides for three separate offenses: (i) inflicting physical injury upon a child, (ii) allowing physical injury to be inflicted upon a child, or (iii) creating or allowing to be created a substantial risk of physical injury for a child. Here, the indictment alleged defendant inflicted physical injury on the victim, but the trial court gave an instruction that “the State had to prove ‘the defendant inflicted physical injury upon the child and/or created a substantial risk of physical injury to the child other than by accidental means.’” Id. at 13. This was error, as the indictment did not allege the “created a substantial risk” offense. Instructing the jury on an offense not in the indictment represented prejudicial error and justified a new trial on the misdemeanor child abuse charge.

Judge Carpenter concurred by separate opinion to highlight the “matter of form rather than substance” with the Fredell interpretation of G.S. 14-318.2(a).