State v. Frazier

• Decision Date: 07 February 2017
• Docket Number: No. COA 16-449,COA 16-449
• Citation: 795 S.E.2d 654
• Parties: State of North Carolina v. Tara May Frazier, Defendant.
• Court: North Carolina Court of Appeals

795 S.E.2d 654

State of North Carolina

v.Tara May Frazier, Defendant.

No. COA 16-449

Court of Appeals of North Carolina.

Filed: February 7, 2017

Attorney General Joshua H. Stein, by Assistant Attorney General Bethany A. Burgon, for the State.

Sean P. Vitrano, Wake Forest, for the Defendant.

DILLON, Judge.

Tara May Frazier ("Defendant") appeals from the trial court's judgment convicting her of negligent child abuse. For the following reasons, we vacate and remand.

I. Background

Defendant was indicted for negligent child abuse based on injuries discovered on her young child. A jury found Defendant guilty of the charge. The trial court entered judgment based on the jury verdict. Defendant timely appealed.

II. Standard of Review

We review a trial court's ruling permitting amendment of an indictment de novo . See State v. Brinson , 337 N.C. 764, 767, 448 S.E.2d 822, 824 (1994).

III. Analysis

On appeal, Defendant contends that the trial court committed reversible error during the trial by permitting the State to amend the indictment.¹ After careful review, we agree with Defendant for the reasons stated below. Accordingly, we vacate the judgment and remand the matter to the trial court for further proceedings not inconsistent with this opinion.

Defendant was indicted for negligent child abuse under N.C. Gen. Stat. § 14–318.4(a5) (2015) after Asheboro police discovered her unconscious in her apartment with track marks on her arms and her nineteen-month old child exhibiting signs of physical injury. Under § 14–318.4(a5), a parent of a young child is guilty of negligent child abuse if the parent's "willful act or grossly negligent omission in the care of the child shows a reckless disregard for human life" and the parent's act or omission "results in serious bodily injury to the child." N.C. Gen. Stat. § 14–318.4(a5).

The indictment here alleged the following:

[T]he defendant named above unlawfully, willfully and feloniously did

show a reckless disregard for human life by committing a grossly negligent omission, by not treating a burn on the victim's chest, a scratch on the lower left side of chest, a laceration on right side of jaw, a scratch on left eye brow, and an abrasion to the lower lip of [the child] ..., who was 19 months old and thus under 16 years of age. The defendant's omission resulted in serious physical injury to the child. At the time the defendant committed the offense, the defendant was the child's parent.

Put simply, the indictment alleges that Defendant committed negligent child abuse because: (1) she negligently failed to treat her child's chest and facial wounds ; (2) her failure caused these wounds to worsen; and (3) the resulting aggravation of these wounds caused the child to suffer serious bodily injury. During the trial, however, the State moved to amend the indictment "to include failure to provide a safe environment as the grossly negligent omission as well," in order to better reflect the evidence presented at trial.

The General Assembly has provided that a "bill of indictment may not be amended." N.C. Gen. Stat. § 15A–923(e) (2015). However, our Supreme Court has construed this provision as only prohibiting changes "which would substantially alter the charge set forth in the indictment." State v. Price , 310 N.C. 596, 598, 313 S.E.2d 556, 558 (1984) (internal quotation marks omitted). See also State v. Silas , 360 N.C. 377, 379–80, 627 S.E.2d 604, 606 (2006). This rule helps ensure that "the accused [is able] to prepare for trial." Silas , 360 N.C. at 380, 627 S.E.2d at 606 (internal quotation marks omitted). Thus, an amendment sought by the State at trial which alleges conduct by the defendant not previously alleged and which touches on an essential element of the charged crime would be a substantial, and therefore prohibited, alteration. See N.C. Gen. Stat. § 15A–924(a)(5) (stating that a criminal pleading—which includes an indictment—must contain a "concise factual statement" that "asserts facts supporting every element of a criminal offense" to apprise the defendant "of the conduct which is the subject of the accusation"). A defendant is entitled to a dismissal if the State attempts to substantially alter an indictment because of a "fatal variance" between the original indictment and the evidence presented at trial. State v. Overman , 257 N.C. 464, 468, 125 S.E.2d 920, 924 (1962).

For example, in a previous felony child abuse case, we have held that there was no fatal variance between an indictment alleging that the defendant's conduct caused a subdural hematoma and trial evidence establishing that the defendant's alleged conduct caused an epidural hematoma. State v. Qualls , 130 N.C.App. 1, 8, 502 S.E.2d 31, 36 (1998), aff'd , 350 N.C. 56, 510 S.E.2d 376 (1999). Specifically, we reasoned that though serious bodily injury was an essential element, an allegation regarding the location of the injury was "surplusage" and therefore not necessary in charging the offense. Id.

In the present case, we conclude that the indictment amendment granted by the trial court constituted a substantial alteration. The amendment alleged conduct that was not set forth in the original indictment and which constituted Defendant's "willful act or grossly negligent omission," an essential element of the negligent child abuse charge. In the original indictment, the State alleged that Defendant's negligent omissions consisted of her failure to treat the child's pre-existing chest and facial wounds . These omissions occurred after the wounds had already been inflicted on the child. The amendment granted at trial, however, alleged that Defendant failed to provide a safe environment : an omission that...