              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA16-591

                                 Filed: 7 March 2017

Lee County, No. 14CRS050710

STATE OF NORTH CAROLINA

             v.

DEAN MICHAEL VARNER, Defendant.


      Appeal by Defendant from judgment entered 14 January 2016 by Judge

Thomas H. Lock in Lee County Superior Court. Heard in the Court of Appeals 1

December 2016.


      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
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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




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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 abuse. Defendant gave timely notice of

appeal.

                                     III. Analysis

      Defendant’s sole argument on appeal is that the trial court committed

reversible error when it struck the proposed instruction defining “moderate

punishment” as punishment which caused “lasting” injury to the child. Specifically,

Defendant contends that the instruction impermissibly allowed the jury to convict

him simply because they thought Defendant’s degree of punishment was excessive,



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even if they thought Defendant was acting in good faith and did not inflict a lasting

injury upon his child. We agree with Defendant. Even though sufficient evidence

was presented to convict Defendant of misdemeanor child abuse, we are compelled to

reverse and remand for a new trial.

      On appeal, this Court reviews jury instructions de novo, State v. Osorio, 196

N.C. App. 458, 466, 675 S.E.2d 144, 149 (2009), considering the matter anew and

substituting its own judgment for that of the lower court. State v. Williams, 362 N.C.

628, 632-33, 669 S.E.2d 290, 294 (2008).

      A parent commits misdemeanor child abuse when the parent intentionally

inflicts any “physical injury” on their child who is under 16 years of age. N.C. Gen.

Stat. § 14-318.2 (2013).

      A parent, however, has the constitutionally protected “paramount right” to

raise one’s children as the parent sees fit. See Peterson v. Rogers, 337 N.C. 397, 402,

445 S.E.2d 901, 904 (1994). Accordingly, our Supreme Court has recognized that, as

a general rule, a parent (or one acting in loco parentis) is not criminally liable for

inflicting physical injury on a child in the course of lawfully administering corporal

punishment. State v. Alford, 68 N.C. 322, 323 (1873).

      This general rule regarding a parent’s right to administer corporal punishment

does not apply: (1) where the parent administers punishment “which may seriously

endanger life, limb or health, or shall disfigure the child, or cause any other



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permanent injury[,]” Alford, 68 N.C. at 323; (2) where the parent does not administer

the punishment “honestly” but rather “to gratify his own evil passions[,]” irrespective

of the degree of the physical injury inflicted, State v. Thorton, 136 N.C. 610, 615, 48

S.E. 602, 604 (1904); or (3) where the parent uses “cruel or grossly inappropriate

procedures . . . [or] devices to modify” a child’s behavior, N.C. Gen. Stat. § 7B-101(1)(c)

(2013).

       In 1837, our Supreme Court recognized the power of those with parental

authority to administer “moderate” corporal punishment:

               One of the most sacred duties of parents, is to train up and
               qualify their children, for becoming useful and virtuous
               members of society; this duty cannot be effectually
               performed without the ability to command obedience, to
               control stubbornness, to quicken diligence, and to reform
               bad habits; and to enable him to exercise this salutary
               sway, he is armed with power to administer moderate
               correction, when he shall believe it to be just and necessary.

State v. Pendergrass, 19 N.C. 365, 365-66 (1837) (emphasis added).1 The Court

defined “moderate punishment” not as this phrase might be understood today, but

more narrowly to include any punishment which did not produce “permanent” injury,

including any punishment that “may seriously endanger life, limbs or health, or shall

disfigure the child[.]” Id. at 366.




       1   Pendergrass was authored by Justice William Gaston, one of our State’s most prominent
justices (serving from 1833 until his death in 1844), the writer of our State song, The Old North State
(in 1835), and for whom Gaston County was named (in 1846).

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      Our Supreme Court further held in Pendergrass that even where a punishment

does not produce or threaten a permanent injury, a parent may nonetheless be held

criminally responsible if he administers the correction to “gratify his own bad

passions[.]” Id. at 367. But if a parent inflicts the punishment “honestly” and the

punishment does not produce or threaten permanent injury, the law will not question

the parent’s discretion to choose the degree of punishment to inflict: “[A parent]

cannot be made penally responsible for error of judgment, but only for wickedness of

purpose.” Id. at 366.

      In conclusion, our Supreme Court stated in Pendergrass that a proper

instruction informs the jury that a parent is not criminally liable for injuring his child

during the administration of corporal punishment “unless the jury could clearly infer

from evidence, that the correction inflicted had produced, or was in its nature

calculated to produce, lasting injury to the child” or “unless the facts [] induced a

conviction in their minds that the defendant did not act honestly in the performance

of duty, according to [a] sense of right, but [rather] under the pretext of duty, [for the

purpose of] gratifying malice.” Id. at 368.

      In 1873, the Court relied on Pendergrass to affirm the right of a step-father,

acting in loco parentis, to administer corporal punishment where the punishment was

not “calculated to produce lasting injury.” Alford, 68 N.C. at 324.




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       Our Supreme Court last cited Pendergrass in 1904, when it reaffirmed the

holding and approved an instruction which informed the jury of its duty not to convict

even if it found that “the whipping was more than was necessary, and was attended

by bodily pain and suffering,” unless “they found that there was either malice or a

permanent injury; the latter being an injury which is lasting and will continue

indefinitely.” See Thorton, 136 N.C. 610, 48 S.E. 602 (1904).

       Our Supreme Court has never disavowed the principles set forth in

Pendergrass regarding a parent’s right to discipline their child.

       Our General Assembly, though, has since further limited a parent’s authority

to discipline his child by declaring that a minor is “abused” when a parent uses a

“cruel or grossly inappropriate” procedure or device to discipline the minor. N.C. Gen.

Stat. § 7B-101(1)(c).2

       Applying the above principles to the facts in the present case, we conclude that

there was not sufficient evidence from which a jury could find that Defendant’s

paddling caused or was calculated to cause permanent injury. However, we conclude

that there was sufficient evidence from which a juror could find that Defendant acted

with malice. For instance, there was evidence that Defendant cursed and yelled at

his son prior to administering the paddling. And a juror could find that the paddling


       2 Our General Assembly has also declared that a school official, when acting in loco parentis,
may discipline a student when otherwise authorized so long as the official does not inflict physical
injury which “requires medical attention beyond simple first aid.” N.C. Gen. Stat. § 115C-390.4(5)
(2013).

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in this case was excessive, which is some evidence of malice. But we further conclude

that a jury could reasonably find based on the evidence that Defendant administered

the paddling without malice and that the punishment was not grossly inappropriate,

regardless of whether the jury might have believed that the paddling was otherwise

excessive.

      The instruction here allowed the jury to convict if it determined that the

punishment administered by Defendant was not “moderate,” without giving further

guidance as to what constitutes “moderate” punishment, except that the jury was to

use their own “reason and common sense.” The trial court refused Defendant’s

request to clarify the term “moderate” as meaning any punishment that did not

produce a “lasting” injury. This was reversible error.

      Without the clarification, the jury was free to convict Defendant of

misdemeanor child abuse even if it determined that Defendant acted honestly but, in

their minds, excessively. Therefore, we reverse Defendant’s conviction and remand

the matter for further proceedings not inconsistent with this opinion.

      We note that 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.

See Pendergrass, 19 N.C. at 366.

      REVERSED AND REMANDED.

      Judges McCULLOUGH and TYSON concur.

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