                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.
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                                    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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                                   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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                                   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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                                       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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                                   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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