In case where the defendant was convicted of misdemeanor child abuse and contributing to the delinquency of a minor, the court reversed the opinion below, State v. Reed, ___ N.C. App. ___, 789 S.E.2d 703 (2016), for the reasons stated in the dissent. Considering the defendant’s evidence, along with the State’s evidence, in this appeal from a denial of a motion to dismiss, the Court of Appeals held, over a dissent, that the evidence was insufficient to support a conviction of misdemeanor child abuse. The evidence showed that the defendant went to use the bathroom in her home for a few minutes, and her toddler, Mercadiez, managed to fall into their outdoor pool and drown. The defendant’s evidence, which supplemented and did not contradict the State’s evidence, showed that the defendant left the child in the care of another responsible adult while she used the bathroom. Although the concurring judge did not agree, the court went on to hold that the motion should also have been granted even without consideration of the defendant’s evidence. Specifically, the State’s evidence failed to establish that the defendant’s conduct was “by other than accidental means.” Reviewing prior cases, the court found: “the State’s evidence never crossed the threshold from ‘accidental’ to ‘nonaccidental.’” It continued:

The known danger here was an outdoor pool. The only purposeful action defendant took, even in the light most favorable to the State, was that defendant went to the bathroom for five to ten minutes. In choosing to go to the restroom, defendant did not leave her child in a circumstance that was likely to create physical injury. . . . If defendant’s conduct herein is considered enough to sustain a conviction for misdemeanor child abuse, it seems that any parent who leaves a small child alone in her own home, for even a moment, could be prosecuted if the child is injured during that time, not because the behavior she engaged in was negligent or different from what all other parents typically do, but simply because theirs is the exceedingly rare situation that resulted in a tragic accident.

With the same lineup of opinions, the court held that the evidence was insufficient to support a conviction of contributing to the delinquency of a minor.

The dissenting judge believed the evidence was sufficient to support both convictions. The dissenting judge broke from the majority, finding that the defendant’s evidence regarding the events immediately before the child drowned was contradictory to, not consistent with, the State’s evidence. According to the dissenting judge, the critical issue was not whether adults were in the home at the time but rather who was supervising the child. “On that critical issue,” the dissenting judge concluded, “the State’s evidence showed that defendant left her 19-month-old baby in the care of [a] nine-year-old [child]. I simply do not agree with the majority’s assertion that the acknowledged presence of [another adult] somewhere inside a multi-room house, without any evidence that he could hear or see Mercadiez as she played outside on the side porch with other children, was in any way relevant to the question of who was supervising Mercadiez when she wandered away to her death.” Citing the evidence presented, the dissenting judge disagreed that the State offered no evidence of a lack of supervision by the defendant and asserted that because the defendant’s husband’s version of the events was inconsistent with the State’s evidence, it should not have been considered with respect to the motion to dismiss. The dissenting judge found that the evidence was sufficient to support the convictions for misdemeanor child abuse and contributing to the delinquency of a juvenile by neglect. The dissenting judge summarized the evidence as follows:

Taken together the State’s evidence at trial shows that defendant knew (1) how quickly unsupervised toddlers in general could wander away into dangerous situations, (2) that two of her young children, including a toddler who appears to have been Mercadiez, had wandered unsupervised to the edge of the street only the month before, (3) that some of defendant’s older children were in the habit of leaving gates open which allowed younger children to wander, (4) how attractive and dangerous open water sources like her backyard pool could be for toddlers, and (5) that defendant had previously been held criminally responsible in the death of a toddler she was babysitting after that child was left unsupervised inside defendant’s home for five to fifteen minutes, managed to get outside, and wandered into a creek where she drowned. Despite this knowledge, defendant still chose to (6) leave toddler Mercadiez outside on a side porch (7) supervised only by other children (8) while defendant spent five to ten minutes in a bathroom where she could not see or hear her youngest child.

In this Montgomery County case, defendant appealed her conviction for felony child abuse resulting in serious physical injury, arguing error in (1) failing to instruct on the lesser included offense of misdemeanor child abuse, (2) denying her motion to dismiss, and (3) failing to instruct on a parent’s right to administer corporal punishment. The Court of Appeals found no error. 

The charge against defendant arose from abuse inflicted on the five-year old son of defendant’s fiancée. After the boy got in a scuffle at his bus stop, defendant made him run in place for at least 45 minutes. A social worker at the school observed bruises and swelling on his feet, and other bruises on his body. During an interview, defendant admitted to making the boy run in place for at least 45 minutes “three to four times” during the previous week. Slip Op. at 5. At trial, defendant moved to dismiss the charges for insufficient evidence, and the trial court denied the motion. Defendant did not object to the jury instructions or request an instruction on the lesser included offense. 

Beginning with (1), the Court of Appeals explained that because the evidence was clear as to each element of felony child abuse, defendant was not entitled to an instruction on the lesser included offense. The court focused on the “serious physical injury” standard to differentiate between the charges, and noted “[i]n totality, the evidence here demonstrated [the boy] experienced ‘great pain and suffering’ and that his injuries were such that a reasonable mind could not differ on the serious nature of [his] condition.” Id. at 14. 

Moving to (2), defendant argued insufficient evidence of “serious physical injury” and “reckless disregard for human life.” Id. at 15. The court disagreed, pointing to the analysis in (1) above, and to the standard from State v. Oakman, 191 N.C. App. 796 (2008), that culpable or criminal negligence could constitute “reckless disregard for human life.” Here defendant’s actions represented sufficient evidence of both elements to justify denying the motion to dismiss. 

Finally, in (3) the court acknowledged the general rule that a parent, including a person acting in loco parentis, is not criminally liable for corporal punishment, but the general rule does not apply when the parent acts with malice. First, the court concluded that defendant’s position as a fiancée of the biological mother did not represent her acting in loco parentis. The court then explained that even if defendant was acting in loco parentis, “a jury could reasonably infer that Defendant acted with malice; therefore, the absence of a jury instruction on corporal punishment did not prejudice Defendant.” Id. at 21. 

Judge Murphy concurred in (2) and concurred in the result only for (1) and (3). 

In this Wake County case, defendant appealed his conviction for involuntary manslaughter, arguing error in the admission of evidence related to defendant’s prior acts of discipline under Rules 403 and 404(b). The Court of Appeals found no error.

In 2019, defendant lived with his then-girlfriend and her five children in Raleigh. In February, they had a dispute over discipline that led to the end of their relationship, and an agreement that defendant would move out and return to Maryland. However, just before defendant was to leave, his girlfriend had a job interview that required her to leave the home for several hours. Defendant was left watching her three youngest children. While she was gone, the youngest child suffered injuries leading to a 911 call. Defendant told paramedics that the child choked on a waffle, but a CT scan at the hospital revealed a skull fracture and hematomas on both sides of the child’s brain, with no sign of obstruction in the airway. Defendant was charged with involuntary manslaughter. At trial, the state moved to admit evidence of three previous episodes of defendant disciplining the children, two of which involved the defendant striking a child. The trial court admitted this evidence over defendant’s objection.

Reviewing defendant’s objection to the evidence, the Court of Appeals found no abuse of discretion in the trial court’s decision to admit the evidence under Rules 403 and 404(b). Because defendant did not dispute the findings of fact or conclusions of law on the motion, the issue on appeal was the Rule 403 analysis of whether the danger of unfair prejudice substantially outweighed the probative value of the three episodes. Defendant first argued that the probative value of the three episodes was minimal, although the trial court determined that two of the episodes involved him “striking” the children and the third was “indicative of a temper,” and the events were “probative of the intent . . .the motive . . . the absence of mistake or accident, and malice.” Slip Op. at 6-7. The court found that the trial court handled the unfair prejudice Rule 403 balancing test appropriately. Despite defendant’s arguments about the prejudicial nature of the evidence and the “verbs chosen” by his girlfriend when recounting his behavior toward her children, the court concluded that “the danger of unfair prejudice did not substantially outweigh the probative value of the evidence” under Rule 403. Id. at 8.

The child victim in this case, “David,” died primarily as a result of blunt force abdominal injuries, with a number of other external and internal injuries as contributing factors. The state’s evidence indicated that the defendant abused David on several occasions during a two-month period, ultimately leading to the child’s death. The defendant was charged with first-degree murder based on causing the victim’s death in the course of committing felonious child abuse under G.S. 14-318.4(a), and was convicted at trial.

On appeal, the defendant argued that there was insufficient evidence he was a “person providing care to or supervision of” the minor victim, as required for a conviction under G.S. 14-318.4(a), and therefore he could not be guilty of the underlying offense that supported the felony murder conviction. After the reviewing the state’s evidence, the appellate court disagreed. The defendant was romantically involved with “R.W.,” the victim’s mother, and he had recently moved in with R.W. and her children and slept at their house every weeknight. The defendant also helped potty train the children, played with them, put them to bed, cooked meals, and did yardwork around the home. The court acknowledged that the child abuse statute does not define what constitutes “care and supervision,” but prior cases such as State v. Carilo, 149 N.C. App. 543 (2002) have “found guidance in our State’s juvenile code under N.C. Gen. Stat. § 7B-101(3) defining a ‘caretaker.’” To determine whether an adult qualifies under the abuse statute, the court looks at the totality of the circumstances including the duration and frequency of care provided by the adult, the location where it occurs, and the amount of decision-making authority held by the adult. Finding that the state’s evidence in this case “mirrors the evidence we found sufficient in Carrilo,” the defendant’s conviction was unanimously affirmed.

Finding itself bound by its prior decision in this felony child abuse case, the Court of Appeals rejected the defendant’s argument that the trial court committed plain error by improperly instructing the jury on the definition of the term “sexual act.” The defendant was charged under G.S. 14-318.4(a2). That statute does not define the term “sexual act” as used in the proscribed offense. That term is however defined in a separate subchapter of the General Statutes—G.S. 14-27.20(4)--to include various forms of sexual activity but excluding vaginal intercourse. The court noted that in two earlier cases--State v. Lark, 198 N.C. App. 82 (2009), and State v. Stokes, 216 N.C. App. 529 (2011)--it had applied the definition of sexual act found in G.S. 14-27.20(4) to felony child abuse without explaining why it did so. Then, in State v. McClamb, 234 N.C. App. 753 (2014), the court squarely addressed the question of whether the term sexual act as used in the child abuse statute included vaginal intercourse. McClamb distinguished Stokes, explaining that it only addressed the issue of digital penetration and did not hold that the definition of sexual act in the child abuse statute excludes vaginal intercourse. McClamb also distinguished Lark, explaining that it was limited to an analysis of fellatio as a sexual act. The court addressed the issue again in State v. Alonzo, __ N.C. App. __, __, 819 S.E.2d 584, 587 (2018). That decision noted a conflict between McClamb, Stokes, and Lark, and applying In re Civil Penalty, 324 N.C. 373 (1989), declined to follow McClamb, concluding that it was bound by the earlier Lark decision. Because the state Supreme Court later stayed the mandate in Alonzo, that case does not yet have any precedential effect. The court declined the defendant’s invitation to adopt the same reasoning applied in Alonzo and conclude that McClamb is not good law, finding that In re Civil Penalty “does not empower us to overrule precedent in this way.” It explained: 

In re Civil Penalty stands for the proposition that, where a panel of this Court has decided a legal issue, future panels are bound to follow that precedent. This is so even if the previous panel’s decision involved narrowing or distinguishing an earlier controlling precedent—even one from the Supreme Court—as was the case in In re Civil Penalty. Importantly, In re Civil Penalty does not authorize panels to overrule existing precedent on the basis that it is inconsistent with earlier decisions of this Court.

The court went on to note that the Supreme Court has authorized it to disregard its own precedent in certain rare situations, such as when two lines of irreconcilable precedent developed independently. But this is not such a case. The court concluded that under In re Civil Penalty it must follow McClamb “because it is the most recent, controlling case addressing the question.” Thus, the trial court’s instructions were not erroneous.

In a case where the defendant was convicted of child abuse inflicting serious bodily injury under G.S. 14-318.4(a3), there was insufficient evidence that the victim experienced serious bodily injury. The victim, the defendant’s daughter, experienced a femur fracture that required surgery temporarily placing rods in her leg, and resulting in permanent scarring. The court rejected the State’s argument that the presence of a scar is sufficient by itself to show serious bodily injury. Here, the victim’s scars resulted from surgery. By the time of trial, the scars had healed and she was engaged in unrestricted physical activities. The State’s expert testified that the child should have no permanent disfiguration or any loss or impairment of function due to the scars. On these facts the scars by themselves are insufficient evidence of permanent disfigurement. The court went on to reject the State’s argument that the victim suffered extreme pain and loss of use of her leg for a period of time, noting that the statute requires more. It is not enough for the victim to suffer extreme pain; the statute requires a permanent or protracted condition that causes extreme pain. Here, the victim testified that her leg stopped hurting long before trial and the evidence showed she was cleared to engage in normal activities within nine months of her surgery. No testimony or other evidence showed that the victim was ever at risk of death due to her injury. Thus, the state presented insufficient evidence of serious bodily injury. The evidence was sufficient however to support a conviction of child abuse resulting in serious physical injury.

Child-abuse under G.S. 14-318.4(a) requires that the defendant intentionally inflict serious physical injury on a child or intentionally commit an assault on the child which results in serious physical injury. These are two separate prongs and the State is not required to prove that the defendant specifically intended that the injury be serious; proof that the defendant intentionally committed an assault on the child which results in serious physical injury is sufficient.

The evidence was sufficient to survive the defendant’s motion to dismiss a misdemeanor child abuse charge under G.S. 14-318.2(a). The case arose from an incident in which the defendant left her young child unattended in a vehicle on a cold day. The State proceeded on the theory that she had created or allowed to be created a substantial risk of physical injury to the child. The court found the evidence sufficient, noting that she left the child, who was under 2 years old, alone and helpless and outside of her line of sight for over 6 minutes inside a vehicle with one of its windows rolled more than halfway down in 18° weather with accompanying sleet, snow and wind. It concluded: “Given the harsh weather conditions, [the child’s] young age, and the danger of him will being abducted (or of physical harm being inflicted upon him) due to the window being open more than halfway, we believe a reasonable juror could have found that Defendant ‘created a substantial risk of physical injury’ to him by other than accidental means.”