State v. Varner, ___ N.C. App. ___, 796 S.E.2d 834 (Mar. 7, 2017)

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.”