State v. Freeman, COA24-120, ___ N.C. App. ___ (Aug. 6, 2024)

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).