State v. Frazier, ___ N.C. App. ___, 795 S.E.2d 654 (Feb. 7, 2017)

In this child abuse case the trial court erred by allowing the State to amend the indictment. The defendant was indicted for negligent child abuse under G.S. 14-318.4(a5) after police discovered her unconscious in her apartment with track marks on her arms and her 19-month-old child exhibiting signs of physical injury. Under that statute, a parent 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.” The indictment charged that the defendant committed this offense by negligently failing to treat her child’s wounds. At trial, the trial court allowed the State to amend the indictment “to include failure to provide a safe environment as the grossly negligent omission as well.” This amendment was improper because it constituted a substantial alteration of the indictment. The amendment alleged conduct that was not alleged in the original indictment and which constituted the “willful act or grossly negligent omission,” an essential element of the charge. The amendment thus allowed the jury to convict the defendant of conduct not alleged in the original indictment. Additionally, the amendment violated the North Carolina Constitution, which requires the grand jury to indict and the petit jury to convict for offenses charged by the grand jury.