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State v. Varner

Court of Appeals of North Carolina

March 7, 2017

STATE OF NORTH CAROLINA
v.
DEAN MICHAEL VARNER, Defendant.

          Heard in the Court of Appeals 1 December 2016.

         Appeal by Defendant from judgment entered 14 January 2016 by Judge Thomas H. Lock in Lee County Superior Court No. 14CRS050710.

          Attorney General Joshua H. Stein, by Assistant Attorney General Caroline Farmer, for the State.

          Appellate Defender Glenn Gerding, by Assistant Appellate Defender John F. Carella, for the Defendant.

          DILLON, JUDGE.

         Dean Michael Varner ("Defendant") was convicted of misdemeanor child abuse for inflicting physical injuries on his son with a paddle. Defendant appeals, contending that the trial court erred by failing to give a requested jury instruction concerning a parent's right to discipline his or her child. We reverse.

         I. Factual Background

         The evidence presented at trial tended to show as follows: Defendant and his ten-year old son were having pizza for dinner at the kitchen table with other family members. Defendant's son, who was a "picky eater, " refused to eat the pizza, telling Defendant that pizza made him gag. Defendant left the table, briefly sat down in the living room, and then retrieved a paddle. Defendant returned to the kitchen table with the paddle, stood next to his son, who was still seated at the kitchen table, and counted down from three. After completing his countdown, Defendant struck his son's left thigh three times with the paddle. Defendant also struck his son's foot as his son pulled his leg up in an attempt to block the blows. Defendant's son then took a bite of the pizza.

         The next morning, Defendant's son had bruising on his thigh, from his knee to his waist. For several days thereafter, Defendant's son was in pain from the punishment, walking with a slight limp and unable to participate in gym class at school. After several days, the pain and bruising subsided.

         Months later, the State obtained an indictment, charging Defendant with felony child abuse.

         II. Procedural Background - Jury Instructions

         Prior to the case being sent to the jury, the parties and the trial judge held a charge conference to discuss the jury instructions. During the charge conference, the trial judge indicated to the parties that he was planning to include an instruction to advise the jury that it could not convict Defendant if it determined that his son's physical injuries were inflicted as a result of Defendant's "moderate punishment to correct [his] child." Neither party objected to this instruction.

         The trial judge, however, 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, contending that "moderate punishment" should not be limited to that which produced lasting injuries. The trial judge agreed with the State and, over Defendant's objection, struck this definition. In the end, the trial judge left "moderate punishment" undefined, leaving it to the jury to determine whether the punishment inflicted by Defendant on his son was moderate "according to the facts and circumstances of the particular case and in the exercise of [their] reason and common sense."

         The jury acquitted Defendant of felony child abuse but found him guilty of the lesser-included offense of misdemeanor child ...


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