State v. YoungAnnotate this Case
312 S.E.2d 665 (1984)
STATE of North Carolina v. Barbara Jean YOUNG.
Court of Appeals of North Carolina.
March 6, 1984.
*667 Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Jane Rankin Thompson, Raleigh, for the State.
Timothy E. Merritt, Jacksonville, for defendant-appellant.
Defendant, indicted for felonious child abuse under G.S. 14-318.4, requested the trial judge to also submit an issue and instruct the jury with respect to misdemeanor child abuse under G.S. 14-318.2. The judge denied the request and submitted only the felony child abuse issue, which the jury answered against defendant. Since the felony child abuse indictment against defendant embraced the lesser included offense of misdemeanor child abuse and the evidence as to a distinctive element of felony child abuse was conflicting, it was prejudicial error not to submit an issue as to the lesser charge, for which defendant is entitled to a new trial.
A lesser included offense is one that has some, but not all, of the essential elements of the greater offense, and has no *668 element that the greater offense does not have. State v. Revelle, 301 N.C. 153, 270 S.E.2d 476 (1980). Whenever the evidence as to one or more elements of a greater offense is in conflict, or is deficient, and the jury can therefore properly find that the lesser offense was committed but the greater offense was not, a defendant is entitled to have the jury consider the lesser charge under proper instructions from the court. State v. Redfern, 291 N.C. 319, 230 S.E.2d 152 (1976).
Under the part of G.S. 14-318.2 that concerns defendant[the other parts relate to two other separate and independent offenses against children not involved in this appeal; see State v. Fredell, 283 N.C. 242, 195 S.E.2d 300 (1973)]a parent or custodian of a child less than 16 years of age who inflicts physical injury upon or to the child by other than accidental means is guilty of a misdemeanor. The word "inflict" means to lay on or impose, and is aptly used in connection with punishment. 43 C.J.S. Inflict p. 707 (1978). Thus, to violate the statute, an intentional, rather than accidental, act causing physical injury is required; but an intent to injure is not required. The phrase "accidental means" has been interpreted by our Supreme Court many times. Though the decisions have not made entirely clear what all falls within its compass, they clearly establish, we think, that injuries which result from intentional acts do not. Henderson v. Hartford Accident & Indemnity Co., 268 N.C. 129, 150 S.E.2d 17 (1966). Thus, since the child was injured because defendant intentionally put her in the water, if one of defendant's purposes in doing so was to punish the child, defendant would be guilty of misdemeanor child abuse, even though she may not have intended to cause an injury. The parts of G.S. 14-318.4 that are pertinent to this case provide, on the other hand, that any parent or custodian of a child less than 16 years of age who intentionally injures the child physically to a serious extent, resulting in permanent disfigurement or substantial impairment of function of any organ of such child, is guilty of a felony. Thus, for the purposes of this case, both crimes involve a parent or custodian physically injuring a child under 16 years of age; and the only distinction between the two crimes is that the felony requires that the injury be serious, permanent and intentionally inflicted, while the misdemeanor requires only that the injury be inflicted by an intentional act. Clearly, therefore, the felony child abuse charge that defendant was tried for embraced the lesser included offense of misdemeanor child abuse; and it is equally clear that because of conflicts in the evidence that the jury should have been permitted to consider both offenses.
Though the evidence as to the other elements of felony child abusethe parent child relationship, the age of the child, that she was seriously injured and one of her bodily organs, the skin, was permanently disfigured to some extentwas all one way, the evidence as to whether the defendant intentionally injured the child was not. The State's evidence tended to show that she intended to injure the child; but her evidence tended to show that she intended no such thing, though it did show that the child was injured by her intentional act in placing her in water that was hotter than she thought it was. That defendant intentionally placed the child in the water is not decisivefor her to be guilty of the felony, she must have also known that the water was hot enough to cause serious injury, and her testimony was that she did not know that. According to the evidence and the common experience of mankind, hands are less sensitive to hot water than other portions of the body and a child's skin is more sensitive to hot water than that of an adult. And defendant, whose hands were in the water, testified that she did not think that the water was hot enough to hurt the child and did not intend to hurt her. If the next jury believes that, it will be their duty to acquit her of the greater offense; and if they also find that in putting the child into the water defendant was not undertaking to punish the child, but was in good faith only undertaking to bathe her, it would be their duty to acquit her of the lesser offense, as well. But the defendant's contention *669 that misdemeanor child neglect under G.S. 14-316.1 is likewise a lesser included offense of felony child abuse and that the jury should have been permitted to also consider that offense is without merit, as a comparison of the two statutes plainly shows.
The judge also committed prejudicial error in charging the jury as follows:The State must prove beyond a reasonable doubt that the defendant, with the actual knowledge that the water in the bathtub was hot enough to cause pain to Shanna Young, placed Shanna Young in the tub with the intent to cause Shanna Young pain. The placing of a child in water hot enough to cause pain, with the knowledge that the water is hot enough to cause such pain is an intentional burning or scalding within the meaning of the law as applied to this case. .... If however, the State of North Carolina has proved beyond a reasonable doubt that the defendant, knowing that the water in the tub was hot enought to cause pain to Shanna Young, with that knowledge placed Shanna Young in the tub with the intent to cause pain to Shanna, then that would be proof beyond a reasonable doubt of an intentional burning or scalding and you could return a verdict of guilty as charged.
Intending to cause a child pain is, of course, not tantamount to intending to scald, burn, or seriously injure a child, the crime defendant was being tried for; and a verdict so based, as this one probably is, cannot be permitted to stand.
In sentencing the defendant to a term of imprisonment longer than the presumptive sentence, the court found two aggravating factors authorized by G.S. 15A-1340.4(a)(1)that the crime was especially heinous, atrocious or cruel, and that advantage was taken of the position of trust and confidence which she had as parent of the child. Applying the principles set forth in State v. Ahearn, 307 N.C. 584, 300 S.E.2d 689 (1983), we are of the opinion that neither finding was justified. The evidence recorded does not show that excessive brutality which especially heinous, atrocious or cruel conductimports; and since the crime that she was convicted of is based on the relationship of parent and child, that relationship cannot be used again to exceed the presumptive sentence.
WEBB and EAGLES, JJ., concur.