in the Court of Appeals 1 December 2016.
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.
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.
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.
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.
later, the State obtained an indictment, charging Defendant
with felony child abuse.
Procedural Background - Jury Instructions
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.
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."
jury acquitted Defendant of felony child abuse but found him
guilty of the lesser-included offense of misdemeanor