{ "id": 8554764, "name": "STATE OF NORTH CAROLINA v. BILLIE JOYCE FREDELL", "name_abbreviation": "State v. Fredell", "decision_date": "1972-12-29", "docket_number": "No. 7218SC778", "first_page": "205", "last_page": "210", "citations": [ { "type": "official", "cite": "17 N.C. App. 205" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "175 S.E. 2d 665", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "277 N.C. 29", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561719 ], "opinion_index": 0, "case_paths": [ "/nc/277/0029-01" ] }, { "cite": "33 A.D. 2d 403", "category": "reporters:state", "reporter": "A.D.2d", "case_ids": [ 3220087 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/ad2d/33/0403-01" ] }, { "cite": "309 N.Y.S. 2d 236", "category": "reporters:state", "reporter": "N.Y.S.2d", "year": 1970, "opinion_index": 0 }, { "cite": "33 A.D. 2d 566", "category": "reporters:state", "reporter": "A.D.2d", "case_ids": [ 3221819, 3244908, 3234671 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/ad2d/33/0566-03", "/ad2d/33/0566-01", "/ad2d/33/0566-02" ] }, { "cite": "305 N.Y.S. 2d 259", "category": "reporters:state", "reporter": "N.Y.S.2d", "year": 1969, "opinion_index": 0 } ], "analysis": { "cardinality": 589, "char_count": 12158, "ocr_confidence": 0.534, "pagerank": { "raw": 9.505882454708161e-08, "percentile": 0.5230486410597683 }, "sha256": "46f1ce977c202b23c9370b0b457a5f978104147b2c0d9f4271924f975a57ba07", "simhash": "1:f86bdd0398a8c5a7", "word_count": 2018 }, "last_updated": "2023-07-14T17:26:57.402584+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Campbell and Brock concur." ], "parties": [ "STATE OF NORTH CAROLINA v. BILLIE JOYCE FREDELL" ], "opinions": [ { "text": "GRAHAM, Judge.\nDefendant 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.\nG.S. 14-318.2 provides:\n\u201cSec. 14-318.2. Child abuse a general misdemeanor.\u2014 (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.\u201d\nIn 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 \u201csubstantial\u201d has a \u201cveritable multitude of meanings and shades of meaning\u201d and that the term \u201csubstantial risk\u201d 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, 305 N.Y.S. 2d 259, 33 A.D. 2d 566 (1969), and People v. Nixon, 309 N.Y.S. 2d 236, 33 A.D. 2d 403 (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\u2019s injuries. This is illustrated by the following mandate given to the jury in the court\u2019s charge:\n\u201cNow, 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.\u201d\nOrdinarily 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, \u00a7 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\u2019s contention that the phrase \u201csubstantial risk\u201d is unconstitutionally vague, and we do not hold that there is, she has no grounds for complaint.\nDefendant contends that evidence tending to show that some of the child\u2019s 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.\nOne 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 \u201ca battered child syndrome.\u201d 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, \u00a7 14. No abuse of discretion has been shown.\nDefendant 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\u2019s 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\u2019s counsel stated, \u201cobjection to the introduction of these pictures as being too inflammatory.\u201d The court overruled this objection and instructed the jury that the photographs were offered into evidence solely for the purpose of illustrating the witness\u2019s testimony and for no other purpose. We hold that this constituted receiving the photographs in evidence.\nDefendant\u2019s 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 \u201cbattered child syndrome.\u201d We find the evidence competent.\nNo error.\nJudges Campbell and Brock concur.", "type": "majority", "author": "GRAHAM, Judge." } ], "attorneys": [ "Attorney General Morgan by Assistant Attorney General Hensey for the State.", "Wallace C. Harrelson, Public Defender, Eighteenth Judicial District, and Vaiden P. Kendrick, Assistant Public Defender, Eighteenth Judicial District, for defendant aypeUant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. BILLIE JOYCE FREDELL\nNo. 7218SC778\n(Filed 29 December 1972)\n1. Infants \u00a7 11\u2014 child abuse statute \u2014 conduct made punishable\nTo convict a parent of child abuse under G.S. 14-318.2, it is necessary that the State prove only one of three separate and distinct acts or courses of conduct: that the parent, other than by 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.\n2. Criminal Law \u00a7 1; Infants \u00a7 11\u2014 child abuse statute \u2014 severability of provisions \u2014 vagueness of one provision\nWhere defendant\u2019s case was submitted to the jury only on the issue of whether defendant actually inflicted her child\u2019s injuries, defendant could not complain of unconstitutional vagueness in the provision of the child abuse statute making it a criminal offense to create or allow to be created a substantial risk of physical injury upon a child since provisions of that statute are severable. G.S. 14-318.2.\n3. Criminal Law \u00a7 33\u2014 child abuse \u2014 evidence of permanency of injuries \u2014 admissibility as showing seriousness\nIn a child abuse case where the jury was instructed that defendant could be found guilty only if found to have inflicted serious injury upon the child, evidence as to the permanency of some of the child\u2019s injuries was competent as tending to establish the seriousness of the injuries.\n4. Criminal Law \u00a7 97\u2014 testimony on redirect examination \u2014 admissibility for clarification\nTestimony by a physician on redirect examination in a child abuse case which tended to clarify some of the evidence that had been presented on direct examination and also some of the evidence elicited on cross-examination was properly admitted.\n5. Criminal Law \u00a7 43\u2014 introduction of photographs \u2014 procedure for admission into evidence\nWhere the record showed that certain photographs were marked for identification as State\u2019s exhibits, were properly authenticated and were used by a witness to illustrate his testimony, the photographs were received into evidence, though the record was silent as to whether the solicitor ever formally offered them into evidence.\nAppeal by defendant from Exum, Judge, 1 May 1972 Criminal Session of Superior Court held in Guilford County.\nDefendant appeals from a conviction in Superior Court under a warrant charging her with inflicting serious physical injury on her two-year-old son, in violation of G.S. 14-318.2. Judgment was entered imposing an active prison sentence.\nOnly the State offered evidence. Its evidence tends to show that on 4 October 1971, the infant was carried by defendant and her husband to the emergency room of Cone Hospital in Greensboro. The child was barely breathing and was in circulatory collapse or profound shock. His condition at that time was described as moribund, meaning \u201ca state close to death.\u201d Several of the child\u2019s front teeth were missing; his abdomen was distended; there was swelling about his abdomen and arms, and there were a number of bruises about his abdomen, head and extremities. X-rays revealed a linear fracture of the skull of fairly recent origin, a fracture of the eleventh rib, and fractures of the bones in both arms. Some of the fractures appeared to be recent and others appeared to have occurred several months previously. In the opinion of an orthopedic surgeon who testified for the State, the older fractures received no medical attention before the child was admitted to the hospital on 4 October 1971.\nFour physicians testified for the State and their testimony tends to show that the child\u2019s injuries resulted from severe trauma and could not have been sustained in the course of normal child play. Two physicians diagnosed the condition of the child as that of a \u201cbattered child.\u201d Battered was described as a term meaning the most extreme form of child abuse, characterized by multiple injuries in different states of healing.\nA physician attempted to establish a history upon the child\u2019s admission to the hospital. The parents told him that the child had a growth problem and fell frequently. He asked them directly why they struck the child. Defendant replied that they did not because they loved the child. He then asked if anyone else might have struck their child. The parents mentioned a baby-sitter, but admitted that the child had not been exposed to a baby-sitter in some four or five months.\nOn 8 October 1972, defendant talked with a Greensboro detective, after having been first advised of her constitutional rights and having executed a written waiver thereof. Defendant stated to the detective that she had a temper and quite often got mad and whipped the child with a lady\u2019s plastic belt. She started the whippings when the child was about a year old. When questioned as to why she administered the whippings, defendant stated that the child cried a lot and would often crawl to the bathroom, play in the commode and drink water from it. Defendant denied that her husband had ever whipped the child and stated that she had admitted to her mother-in-law that she knew she had whipped the child too hard. Her mother-in-law had replied, \u201cYou\u2019d better watch it.\u201d Defendant stated that only she and her husband had been caring for the child for the two months preceding the interview. He had been cared for by baby-sitters for a few hours from time to time. When defendant would pick up the child from the custody of the babysitters, there would be no bruises or marks about him.\nAttorney General Morgan by Assistant Attorney General Hensey for the State.\nWallace C. Harrelson, Public Defender, Eighteenth Judicial District, and Vaiden P. Kendrick, Assistant Public Defender, Eighteenth Judicial District, for defendant aypeUant." }, "file_name": "0205-01", "first_page_order": 229, "last_page_order": 234 }