State v. Fritsch

• Citation: 526 S.E.2d 451
• Decision Date: 07 April 2000
• Docket Number: No. 141PA99.,141PA99.
• Parties: STATE of North Carolina v. Kimberly Braxton FRITSCH aka Kimberly Rains Fritsch.
• Court: United States State Supreme Court of North Carolina

526 S.E.2d 451

STATE of North Carolina v. Kimberly Braxton FRITSCH aka Kimberly Rains Fritsch.

No. 141PA99.

Supreme Court of North Carolina.

April 7, 2000.

Michael F. Easley, Attorney General, by Grady L. Balentine, Jr., Assistant Attorney General, for the State-appellant and -appellee.

Stephen M. Valentine, Beaufort, for defendant-appellant and -appellee.

PARKER, Justice.

Defendant was indicted for felonious child abuse and involuntary manslaughter of her seven-year-old daughter (victim). The jury convicted defendant of nonfelonious child abuse and involuntary manslaughter. The convictions were consolidated for judgment, and the trial court sentenced defendant to a term of sixteen to twenty months imprisonment.

At trial the State's evidence tended to show that the victim suffered from cerebral palsy and severe mental retardation, functioning at the level of an infant. The victim died on 1 January 1996 at her home in Carteret County. The victim was a student at the Newport Developmental Center ("Center"), a therapeutic day program for children with special needs, from June 1989 until January 1992 and then again from April 1993 until 16 October 1995. While at the Center, the victim never exhibited any eating problems or inability to swallow. In February 1994 the victim weighed twenty-six and a half pounds. The victim was then absent from the Center from 8 June 1994 until 30 August 1994. When the victim returned on 30 August 1994, the Center observed that she was dirty and thinner and that she had sores on her back. The victim then weighed twentytwo pounds. The Center then contacted the Department of Social Services ("DSS") concerning the victim's physical condition. The DSS's investigation revealed that the victim had fresh and old bed sores on her spine, that the victim had a severe diaper rash, and that she appeared emaciated. The DSS then contacted Dr. William Stanley Rule for a child medical evaluation as to whether the victim's condition was due to neglect or her disability. The DSS's investigation also revealed that the victim had not been seen regularly by a physician. After the DSS substantiated a case for neglect of the victim, defendant entered into two intervention plans with the DSS which included choosing a doctor to perform regular weight checks and medical examinations of the victim, having the victim followed by a home health agency or a similar organization, taking advantage of respite services for additional home support, obtaining counseling regarding defendant's care of the victim, having the victim attend the Center on a regular basis, and obtaining regular employment and independence. The DSS's service regarding this neglect complaint of the victim ended in May 1995.

Dr. Rule, an expert in the field of pediatrics, saw the victim from infancy in 1988 until 1992. According to Dr. Rule, the victim was a premature twin who had numerous medical problems, including severe kidney disease with a swollen left kidney, a collapsed lung, pulmonary disease, cerebral atrophy, and visual and hearing difficulties. Pursuant to the DSS's request to examine the victim, Dr. Rule concluded that

[t]he pressure sore and evidence of prior similar lesions, along with chronic diaper rash and diminished subcutaneous tissue, a possible sign of inadequate caloric intake, along with the apparent lack of consistent medical, home and medical follow-up of problems, all raise valid concerns regarding the child's care, regarding child care issues. There is no suggestion of abuse.... Cerebral palsy could possibly explain the child's size and growth status, but I still believe the situation is suspect.... The skin lesions and her diaper rash, those areas I felt were indicative of suboptimal care or poor care. I thought that the weight of the child was something that should raise concern.

After regular attendance at the Center, the victim weighed twenty-seven pounds on 21 September 1994. The victim was again absent from the Center from 4 January 1995 until 4 April 1995. On 4 April 1995 the victim weighed twenty-four and a half pounds. After numerous absences from the Center in April and May 1995, the victim weighed twenty-two and a half pounds on 10 May 1995.

The victim was again absent from the Center from 2 September 1995 until 2 October 1995. On 2 October 1995 the victim returned to the Center unkempt and with sores. The victim weighed twenty-three pounds. The Center contacted the DSS again regarding the victim's physical condition. On 4 October 1995 the DSS observed that the victim appeared emaciated; that her arms and legs were in a fetal position; that she looked and smelled bad; that she had crusted dirt between her toes and various folds of her skin; that her left foot was swollen; and that she had pressure sores on her right foot, right ear, back, and the back of her head at the hairline. When questioned about the victim's physical condition, defendant responded that the pressure sores were actually ant bites that had not healed. The DSS then told defendant to take the victim to the doctor for a medical evaluation. On or about 19 October 1995, the victim was treated for an ear and upper respiratory infection; and the physical examination was rescheduled. However, defendant missed two scheduled appointments to have the victim physically examined. Despite numerous calls and visits to defendant's home and a mailed certified letter requesting contact, the DSS was unable to contact defendant until 18 December 1995. On 19 December 1995 the DSS stressed to defendant that the victim needed a physical evaluation and that she needed to be back at the Center. On 20 December 1995 the DSS substantiated neglect for "lack of proper care and lack of proper medical care" of the victim by defendant based on observations made at the Center on 4 October 1995 and defendant's continued failure to take the victim to a doctor for a physical examination. The victim died on 1 January 1996 before case workers were scheduled to visit defendant's home.

On 2 January 1996 Dr. John Leonard Almeida, Jr., a pathologist, performed an autopsy of the victim's body. The autopsy revealed that the victim weighed eighteen pounds at her death and that the victim's stomach contained approximately a quart of food. Dr. Almeida opined that the underlying cause of the victim's death was "starvation malnutrition." He "found no evidence that [the victim] could not digest and ingest food." Dr. Almeida further opined that

the malnutrition was of relatively long standing chronic condition, and that the child had very little strength or energies left. And although she had been fed and had ingested a significant amount of food, that she was unable to use that food for the final meal to any useful purpose.

According to defendant, the victim was able to eat only pureed food prepared in a blender. Dr. Richard Stevenson, defendant's expert in pediatrics and developmental disabilities in children, testified that it was common for children with cerebral palsy to be malnourished. Although Dr. Stevenson never physically examined the victim, he reviewed the victim's medical records and concluded that the victim "had been significantly malnourished for at least two years prior to her death." Dr. Stevenson explained that

[the victim's] ability to eat was limited by the severity of her disability, so that she could only take in a certain number of calories. I think that she became malnourished and stay[ed] malnourished chronically. I think that malnutrition was then complicated by medical factors. Most importantly, I think her bed sores, and that the combination of [mal]nutrition and the bed sores, as well as intervening colds and other things like that, lead [sic] to a vicious circle of continued malnutrition, increased weakness and eventually, death.

In forming his opinions, Dr. Stevenson relied on a medical article that contained a study revealing that "43 percent of children with that severity of handicap [as the victim] were dead by age five and 70 percent were dead by age ten."

Defendant presented testimony of numerous family members and friends who testified that they witnessed defendant feeding the victim many times. They all attested to the fact that the feeding process was long and arduous since the victim had a difficult time swallowing food. They also testified that the victim had always been very thin for a child her age. Dr. Donald Jason, an expert in the field of forensic pathology, reviewed the victim's autopsy report and concluded that the victim died not from starvation malnutrition, but from severe dehydration since the stomach was not emptying properly. Defendant testified that the missed appointments for medical physicals were due to car problems. Defendant also testified that she kept the victim out of the Center during the winter months on account of the victim's respiratory problems.

Prior to trial on the charges of felonious child abuse and manslaughter, defendant filed five motions in limine to suppress the evidence of (i) the pathologist's conclusion that the victim died from the withholding of food; (ii) defendant's lifestyle; (iii) the injury to the victim's brother's eye; (iv) the victim's "diaper rash, bed sores, unclean or unsanitary appearance or evidence of marks, rashes, bites, [or] other conditions"; and (v) the four investigations by the DSS into allegations of neglect of the victim by defendant. The trial court granted defendant's first three motions, denied the fourth motion, and granted the fifth motion only with regard to the March 1994 and July 1994 DSS investigations into allegations of neglect of defendant's other children that were not substantiated.

At the close of the State's evidence and at the close of all the evidence, defendant moved to have the charges dismissed; the trial court denied the motions. After the jury returned it verdicts, defendant renewed her motion to dismiss and moved to have the jury...