Smith's Criminal Case Compendium
Smith's Criminal Case Compendium
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Smith's Criminal Case Compendium
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This compendium includes significant criminal cases by the U.S. Supreme Court & N.C. appellate courts, Nov. 2008 – Present. Selected 4th Circuit cases also are included.
Jessica Smith prepared case summaries Nov. 2008-June 4, 2019; later summaries are prepared by other School staff.
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Contrary to the conclusion of the Court of Appeals below, the trial court did not err in this felony child abuse case under G.S. 14-318.4 by failing to instruct the jury that the term “sexual act” for purposes of the offense is the definition provided for the term in what is now Article 7B of G.S. Chapter 14 (Rape and Other Sex Offenses). Conducting a statutory construction analysis, the Supreme Court concluded that the legislative history of the Article 7B definitions statute, G.S. 14-27.20, indicated that the provided definition of “sexual act” was intended by the legislature to apply within its own article and, consequently, not to the offense of felony child abuse. The court noted that since its enactment and throughout numerous legislative changes the definitions statute in Article 7B consistently has stated that its applicability is limited to its own article. As neither the defendant nor the state presented the issue for the court in their petitions for discretionary review, the court declined to reach the defendant’s argument that the trial court’s instruction on the term “sexual act,” which seemed to match the definition of indecent liberties under G.S. 14-202.1, was erroneously overbroad.
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 Mitchell County case, defendant appealed his conviction for felony child abuse inflicting serious bodily injury, arguing (1) error in denying his motion to dismiss, (2) plain error in failing to instruct the jury on the defense of accident, and (3) error in denying his requested jury instructions on lesser-included offenses. The Court of Appeals found no error or plain error.
In October of 2019, defendant brought his daughter to the emergency room with a head injury. During an interview with DSS at the hospital, defendant said the injury occurred when he tripped carrying his daughter and her head hit the bar on a Pack’n Play. Expert testimony disputed defendant’s version of the events, as the child “had significantly more and significantly more severe injuries than would be expected from a short fall, from falling from the father’s arms into a Pack ’N Play, or even onto the floor.” Slip Op. at 6. The child suffered permanent brain damage and loss of mobility on the left side of her body.
The Court of Appeals considered (1), defendant’s argument that the State presented insufficient evidence of his intent to inflict the child’s injuries. The court pointed out that intent is normally proven by circumstantial evidence. Here, the medical reports reflected significant injuries to the child’s brain, and expert testimony found those injuries “were consistent with physical abuse.” Id. at 10. These represented substantial evidence that defendant “intentionally inflicted serious bodily injury to [the child,]” justifying the denial of defendant’s motion. Id.
Moving to (2), the court noted that defendant did not object to the jury instructions, meaning the review was for plain error. Assuming arguendo that it was error that the jury was not instructed on the defense of accident, the court could not find prejudice, as the elements of felony child abuse inflicting serious bodily injury required the jury to find defendant intentionally injured the child. The court explained that the jury heard testimony from defendant that the events were an accident, and from the State’s expert that the injuries were indicative of child abuse. After hearing the two competing explanations, “[t]he jury thus found beyond a reasonable doubt that Defendant’s testimony was not credible by finding him guilty of felony child abuse inflicting serious bodily injury.” Id. at 14. Providing an instruction on the defense of accident would not have impacted the outcome.
Finally, in (3), the court explained that instruction on lesser-included offenses is not required “’when the State’s evidence is positive as to each and every element of the crime charged and there is no conflicting evidence relating to any element of the charged crime.’” Id. at 15, quoting State v. Millsaps, 356 N.C. 556, 562 (2002). Here, the distinguishing element between the charge and lesser offenses was “the level of harm inflicted upon the child.” Id. The court concluded that “[h]ere, there was no evidence presented at trial from which the jury could have rationally found that Defendant committed the lesser offense[s] . . . because the State’s evidence is positive as to the element of serious bodily injury and there is no conflicting evidence.” Id. at 16.
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.
In this Yadkin County case, two defendants, Defendant A and Defendant P, appealed their convictions for misdemeanor child abuse. Both defendants appealed trial court’s (1) denial of their motion to dismiss at the close of evidence and (2) denial of their motion to reopen voir dire of a juror for bias; Defendant A also appealed trial court’s imposition of conditions of probation while the appeal was pending. The Court of Appeals found no error with the denial of motions, but did find error in imposing conditions of probation while an appeal was pending.
Defendants’ convictions arose from a 2018 incident in the parking lot of the Yadkin County Sheriff’s Office. An officer from the Yadkinville Police Department, located across the street, walked out of the police department to head home when he heard a commotion across the street, and observed Defendant A pulling on something in the back seat of a car. When the officer approached, he observed Defendant A and Defendant P were having a “tug of war” over their child in the back seat of a car; both defendants were tried and eventually convicted of misdemeanor child abuse in 2021.
The court first considered the motion to dismiss, reviewing whether substantial evidence of each element of child abuse under N.C.G.S. § 14-318.2 was present in the record. Because there was no dispute that the defendants were the parents of the child in question, and that the child was less than 16 years old, the only element in dispute was whether defendants “created or allowed to be created a substantial risk of physical injury” for the child. Slip Op. at ¶11, quoting State v. Watkins, 247 N.C. App. 391 (2019). The court noted the “paucity” of caselaw, observing that Watkins appears to be the only reported case on the “substantial risk” theory under N.C.G.S. § 14-318.2. Slip Op. at ¶13. However, after exploring Watkins and unreported caselaw, the court explained that even a brief period of time placing the child at risk of physical harm could represent “substantial risk,” justifying the jury’s consideration of the question. After examining the evidence against both defendants, the court found no error with the trial court.
Examining the motion to reopen voir dire, the court explained that N.C.G.S. § 15A-1214(g) granted substantial leeway to the trial court when conducting an inquiry into possible juror bias. Here, the trial court directly questioned the juror during a period spanning two days, allowing the juror to consider the instructions overnight. Slip Op. at ¶30. Additionally, the trial court permitted arguments from counsel on both days of questioning the juror. The Court of Appeals found the trial court did not abuse its discretion in refusing to reopen voir dire in these circumstances.
The Court of Appeals did find error when the trial court ordered Defendant A to enroll and complete co-parenting classes while the appeal in this matter was pending. Slip Op. at ¶34. Under N.C.G.S. § 15A-1451(a)(4), a defendant’s notice of appeal stays probation, meaning trial court’s imposition of the co-parenting condition was error. As a result, the court remanded for resentencing Defendant A only.
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.
The defendant was convicted of indecent liberties with a child and felony child abuse by sexual act based on crimes committed against his daughter and stepdaughter.
(1) The court of appeals determined that the trial court did not plainly err in instructing the jury on felonious child abuse by sexual act. G.S. 14-318.4(a2) provides that any parent or legal guardian of a child under 16 who “commits or allows the commission of any sexual act upon the child is guilty of a Class D felony.” The trial court instructed the jury in accordance with NC Pattern Jury Instruction – Criminal 239-55B that a “sexual act is an immoral, improper or indecent touching or act by the defendant upon the child.” On appeal, the defendant argued that the definition of “sexual act” in G.S. 14-27.20(4) should apply. The term is therein defined as “[c]unninglingus, fellatio, analingus, or anal intercourse, but does not include vaginal intercourse.” It also includes “the penetration, however slight, by any object into the genital or anal opening of another person’s body.”
The court of appeals in Wohlers found the defendant’s argument foreclosed by State v. Alonzo, 373 N.C. 437 (2020). In Alonzo, the state supreme court concluded that the definitions in G.S. 14-27.20 applied only within Article 7B of Chapter 14. Thus, the Alonzo court held that it was error for the court of appeals below to have concluded that the definition of sexual act in G.S. 14-27.20(4) applied to offenses under G.S. 14-318.4(a2), which is contained in Article 39 of Chapter 14.
(2) The court of appeals determined that even if the trial court erred in failing to strike testimony from a forensic interviewer that arguably vouched for the victim’s credibility, the defendant could not show he was prejudiced by the error. The interviewer testified that the defendant’s stepdaughter’s disclosure was “tentative,” and that “she’s a child who falls into the I want to tell someone so this will stop, but I don’t really want it to go past that, and I just want it to be done.” The defendant did not move to strike the testimony at trial, but argued on appeal that it was impermissible vouching of the victim’s credibility.
The court held that the defendant could not show that the alleged error had a probable impact on the jury’s finding that he was guilty, noting that the defendant himself had provided a written statement that was consistent with the victim’s testimony and which was introduced as evidence at trial.
(3) The court of appeals held that the trial court properly determined the defendant’s maximum term of imprisonment for felony child abuse by sexual act, a Class D felony, based upon the minimum term it had selected (64 months) rather than the minimum term permitted by statute (51 months). G.S. 15A-1340.17(f) provides that, for offenders sentenced for reportable convictions that are Class B1 through E felonies, the maximum term of imprisonment “shall be equal to the minimum term of imprisonment and twenty percent (20%) of the minimum term of imprisonment, rounded to the next highest month, plus 60 additional months.” Once the trial court set the defendant’s minimum term of imprisonment at 64 months (the top of the presumptive range), it properly added 64 plus 13 (20 percent of 64, 12.8, rounded to the next highest month) plus 60, totaling 137 months.
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.
The evidence was sufficient to support the defendant’s convictions for misdemeanor child abuse. The charges asserted that the defendant used heroin in the presence of a child. The court rejected the defendant’s argument that the State was required to prove, through chemical analysis, that a substance seized at the premises was in fact heroin. Here, the evidence showed that officers discovered the defendant unconscious from an apparent drug overdose; the defendant admitted to officers that she used heroin before becoming unconscious; and drug paraphernalia consistent with heroin use was found in the hotel room occupied by the defendant and her children. This evidence was sufficient to send the charges to the jury.
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.
In this misdemeanor child abuse case, where the defendant hit his son with a paddle, the trial court committed reversible error with respect to the jury instructions. After the defendant paddled his 10-year-old son for refusing to eat at the family dinner table, the child experienced bruising and pain for several days. The defendant was charged with felony child abuse. At the charge conference, the trial judge told the parties that he would instruct the jury that it could not convict the defendant if it found that the child’s injuries were inflicted as a result of the defendant’s “moderate punishment to correct” his child. Neither party objected to this instruction. The trial judge further indicated that he would give an instruction defining “moderate punishment” as “punishment that does not cause lasting injury.” The State objected to this definition, arguing that moderate punishment should not be limited to that which produced lasting injuries. The trial judge agreed and, over the defendant’s objection, struck this definition. Thus, the trial judge left the term moderate punishment undefined. The jury found the defendant guilty of misdemeanor child abuse. On appeal the defendant argued that the trial court erred when it struck the proposed instruction defining moderate punishment as punishment which caused lasting injury to the child. The court agreed that the instructions impermissibly allowed the jury to convict the defendant simply because they thought his degree of punishment was excessive, even if they thought he was acting in good faith and did not inflict a lasting injury on the child. The court reversed and remanded for a new trial, noting that based on the case law discussed in the court’s opinion, “it would have been proper for the State to request an instruction advising the jury that it could nonetheless convict if it determined that Defendant acted out of ‘wickedness of purpose,’ irrespective of the extent of the physical injuries.”
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.
Because subarachnoid hemorrhaging constitutes “serious bodily injury,” the evidence was sufficient to convict the defendant of felonious child-abuse inflicting serious bodily injury under G.S. 14-318.4(a3). The court rejected the defendant’s argument that since the child did not actually suffer acute consequences from the hemorrhages, his brain injury never presented a substantial risk of death. Among other things, a medical expert testified that bleeding on the brain could lead to a number of issues including developmental delays and even “acute illness and death.” Citing this and other evidence, the court concluded that there was sufficient evidence that the child’s brain injury created a substantial risk of death.
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.”
A defendant may be convicted of child abuse by sexual act under G.S. 14-318.4(a2) when the underlying sexual act is vaginal intercourse.
Digital penetration of the victim’s vagina can constitute a sexual act sufficient to support a charge of child abuse under G.S. 14-318.4(a2) (sexual act).
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.
(1) Following, State v. Stevens, 228 N.C. App. 352 (2013), the court held that the offense of contributing to a juvenile’s being delinquent, undisciplined, abused or neglected (G.S. 14-316.1) does not require the defendant to be the juvenile’s parent, guardian, custodian, or caretaker; the defendant need only be a person who causes a juvenile to be in a place or condition where the juvenile does not receive proper care from a caretaker or is not provided necessary medical care. (2) The evidence was sufficient to show that the defendant placed the child in a position in which she could be found to be abused or neglected. The defendant entered the child’s bedroom when she was trying to sleep, tried to get her to drink alcohol, squeezed her buttocks, asked her to suck his thumb and asked to suck her chest. (3) Although the trial court’s jury instructions on the G.S. 14-316.1 charge were erroneous, the error did not rise to the level of plain error.
The evidence was sufficient to show that the defendant committed the offense of contributing to the delinquency/neglect of a minor. The court rejected the defendant’s argument that the State presented no evidence that the defendant was the minor’s parent, guardian, custodian, or caretaker, concluding that was not an element of the offense. The court further found that the State presented sufficient evidence that the defendant put the juvenile in a place or condition whereby the juvenile could be adjudicated neglected. Specifically, he took the juvenile away from the area near the juvenile's home, ignored the juvenile after he was injured, and then abandoned the sleeping juvenile in a parking lot. The court concluded: “Defendant put the juvenile in a place or condition where the juvenile could be adjudicated neglected because he could not receive proper supervision from his parent.”
In this neglect of an elder adult case, the trial court did not err by denying the defendant’s motion to dismiss for insufficient evidence that she was her elderly mother’s “caretaker” as that word is defined by G.S. 14-32.3(d)(1), and the trial court did not commit plain error by allowing a video of the defendant’s mother to be played for the jury. Despite the defendant’s argument that she and her mother, who lived at the defendant’s house, did not have a “close relationship” and were “more like roommates” and testimony describing the mother as a “very private person [who] liked to keep to herself,” the court found the State’s evidence sufficient to send the question of the defendant’s caretaker status to the jury. This evidence included that in her mother’s final weeks of life the defendant helped her bathe; purchased food and supplies for her; assisted her in paying her bills; helped with “general normal care, daily things;” and purchased life insurance on her behalf and at her request.
The court went on to determine that the trial court did not commit plain error by admitting a video of a police interview with the defendant’s mother to be played for the jury. The defendant argued that her mother’s statements in that video, which went to the issue of whether the defendant was her caretaker, were inadmissible hearsay. The court found that admission of the video, even if error, was not prejudicial because the State’s other evidence was adequate to prove that the defendant was her mother’s caretaker.