State v. Frazier , 795 S.E.2d 654 ( 2017 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA 16-449
Filed: 7 February 2017
Randolph County, No. 13CRS055016
STATE OF NORTH CAROLINA
v.
TARA MAY FRAZIER, Defendant.
Appeal by Defendant from judgment entered 8 October 2015 by Judge Michael
D. Duncan in Randolph County Superior Court. Heard in the Court of Appeals 5
October 2016.
Attorney General Joshua H. Stein, by Assistant Attorney General Bethany A.
Burgon, for the State.
Sean P. Vitrano 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.
STATE V. FRAZIER
Opinion of the Court
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
1Defendant has raised additional arguments on appeal. However, as the indictment
amendment constitutes reversible error, we need not reach these other arguments.
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STATE V. FRAZIER
Opinion of the Court
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
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STATE V. FRAZIER
Opinion of the Court
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
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STATE V. FRAZIER
Opinion of the Court
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 occurred prior to her child incurring
the wounds. Under this new theory, the jury could convict based on a finding that
Defendant’s failure to provide a safe living environment for her child was the cause
of her child’s wounds in the first instance, irrespective of whether she attempted to
treat the wounds after they had been inflicted.2
Admittedly, the amendment sought by the State may seem minor. However,
since the amendment allowed the jury to convict Defendant of conduct not alleged in
the original indictment and found by the grand jury, we must vacate the judgment
against her. In addition to violating N.C. Gen. Stat. § 15A-923(e), the indictment
amendment was prohibited under the Declaration of Rights contained in our North
Carolina Constitution, which requires the grand jury to indict and the petit jury to
convict for offenses charged by the grand jury. N.C. CONST. art. I, § 22 (amended
1971). As our Supreme Court has explained, “[t]hese principles are dear to every
[citizen]; they are his shield and buckler against wrong and oppression, and lie at the
foundation of civil liberty; they are declared to be [rights] of the citizens of North
2 As Defendant notes in her brief, the jury verdict form did not provide jurors an option to
indicate under what theory they were convicting Defendant.
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STATE V. FRAZIER
Opinion of the Court
Carolina, and ought to be vigilantly guarded.” State v. Moss, 47 N.C. 66, 68 (1854).
“Every [citizen] . . . has a right to the decision of twenty-four of his fellow-citizens
upon the question of his guilt; first, by a grand jury, and secondly, by a petty jury of
good and lawful [citizens].” Id. at 69.
IV. Conclusion
As the trial court committed reversible error by permitting the State to amend
the indictment, we vacate the judgment and remand the matter to the trial court for
further proceedings not inconsistent with this opinion.
VACATED AND REMANDED.
Judges ELMORE and HUNTER, JR., concur.
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