State v. Fredell , 17 N.C. App. 205 ( 1972 )

193 S.E.2d 587 (1972) 17 N.C. App. 205

STATE of North Carolina
v.
Billie Joyce FREDELL.

No. 7218SC778.

Court of Appeals of North Carolina.

December 29, 1972.

Atty. Gen. Robert Morgan by Asst. Atty. Gen., Charles M. Hensey, for the State.

Wallace C. Harrelson, Public Defender, Eighteenth Judicial District, and Vaiden P. Kendrick, Asst. Public Defender, Eighteenth Judicial District, for defendant appellant.

GRAHAM, Judge.

Defendant moved in District Court, and again in Superior Court, to quash the warrant on the grounds that certain portions of G.S. § 14-318.2 are unconstitutionally vague, uncertain and indefinite. The denial of this motion is asserted as error.

G.S. § 14-318.2 provides:

"Sec. 14-318.2. Child abuse a general misdemeanor.—(a) Any parent of a child less than 16 years of age, or any other person providing care to or supervision of such child, who inflicts physical injury, or who allows physical injury to be inflicted, or who creates or allows to be created a substantial risk of physical injury, upon or to such child by other than accidental means is guilty of the misdemeanor of child abuse."

In order to convict a parent of child abuse under the statute quoted above, it is necessary that the State prove only one of three separate and distinct acts or courses of conduct; to wit, that the parent, by other than accidental means, (1) inflicted physical injury upon the child; (2) allowed physical injury to be inflicted upon the child; or (3) created or allowed to be created a substantial risk of physical injury upon the child. Defendant attacks only the portion of the statute making it unlawful to create or allow to be created a substantial risk of physical injury. She argues that the word "substantial" has a "veritable multitude of meanings and shades of meaning" and that the term "substantial risk" is so elusive that a person of ordinary intelligence would be required to guess at its meaning. We note in passing that in two recent cases, a New York appellate court held that an identical phrase used in a penal statute was not unconstitutionally vague and indefinite. People v. Lucchetti, 33 A.D.2d 566, 305 N.Y.S.2d 259 (1969), and People v. Nixon, 33 A.D.2d 403, 309 N.Y.S.2d 236 (1970). However, the question is not presented here because the case was submitted to the jury only on the issue of whether defendant actually inflicted the child's injuries. This is illustrated by the following mandate given to the jury in the court's charge:

"Now, members of the jury, I instruct you finally that if you find from the evidence in this case and beyond a reasonable doubt, the burden being upon the State to so satisfy you, that the defendant, Billie Joyce Fredell, is the mother of Kelly Joe Fredell, a child, and that Kelly Joe Fredell on or about October 4, 1971, and before that time was a child less than sixteen years of age, and that the defendant, Billie Joyce Fredell, inflicted serious injuries on that child; that is to say, she inflicted injuries which caused severe and massive bruising and hematomas and fractures of both arms and skull and, members of the jury, if you further find that these injuries were inflicted by the defendant by other than accidental means as I have defined that term to you, then, members of jury, it would be your duty to return a verdict of guilty as charged in this case. If you fail to so find or have a reasonable doubt as to any one or more of these necessary things, then you would give the defendant the benefit of that doubt and find her not guilty."

Ordinarily an appellate court will not undertake to determine whether a statute is unconstitutional except with reference to the ground on which it is attacked. Martin v. Housing Corp., 277 N.C. 29, 175 S.E.2d 665; 16 Am.Jur.2d, Constitutional Law, § 114. The provision of the statute making it a criminal offense to create or allow to be created a substantial risk of physical injury upon a child may be severed from the other provisions of the statute without affecting the sufficiency of the latter to accomplish the statutory purpose. Therefore, even if there is merit in defendant's contention that the phrase "substantial risk" is unconstitutionally vague, and we do not hold that there is, she has no grounds for complaint.

Defendant contends that evidence tending to show that some of the child's injuries were permanent in nature was incompetent and should have been excluded. We disagree. Evidence as to the seriousness of the injuries allegedly inflicted by defendant was essential since the jury was instructed that defendant could be found guilty only if found to have inflicted serious injury upon the child. Evidence that some of the injuries were permanent tended to establish that they were serious and it was relevant for that purpose.

One of the physicians who testified for the State was allowed to give his opinion on redirect examination that the injuries he had described could not have been caused by a fall from a bed. He was also permitted on redirect examination to define "a battered child syndrome." Defendant contends this constituted new evidence and should have been excluded. In our opinion, the testimony tended to clarify some of the evidence that had been presented on direct examination and also some of the evidence elicited on cross-examination. Even if the evidence is regarded as new matter, it was not error for the court to allow it, absent an abuse of discretion. See 7 Strong, N.C. Index 2d, Trial, § 14. No abuse of discretion has been shown.

Defendant complains that certain photographs were shown to the jury without having been introduced into evidence. The record indicates that the photographs in question were marked for identification as State's exhibits, were properly authenticated, and were used by a witness to illustrate his testimony. While the record is silent as to whether the solicitor ever formally offered them into evidence, it does show that defendant's counsel stated, "objection to the introduction of these pictures as being too inflammatory." The court overruled this objection and instructed the jury that the photographs were offered into evidence solely for the purpose of illustrating the witness's testimony and for no other purpose. We hold that this constituted receiving the photographs in evidence.

Defendant's remaining contention relates to the admission of testimony of physicians, over objection, that in their opinion the child was suffering from a malabsorption syndrome and from a blizzard syndrome. There was evidence that child abuse can cause a malabsorption syndrome and that the blizzard syndrome is a component of "battered child syndrome." We find the evidence competent.

No error.

CAMPBELL and BROCK, JJ., concur.