Criminal Practice — Murder by Starvation – First Impression – Malice – Some Feedings

The act of starving another person to death—as defendant did to his four-year-old stepson, Malachi—takes time, during which the defendant has ample opportunity to reflect upon his conduct, to take mercy upon the victim, and to be increasingly aware of the other person’s condition, with a decision to intentionally deprive another person of needed nutrition and hydration resulting in death being, under such circumstances, inherently malicious as a matter of law. Thus, the malice necessary for guilt of murder is inherent in the intentional withholding of hydration or nutrition sufficient to cause death. After a bench trial, the trial court did not plainly err by failing to make a separate determination that defendant acted maliciously.

We affirm the Court of Appeals’ decision upholding defendant’s convictions for first-degree murder by starvation and negligent child abuse inflicting serious bodily injury.

The record shows there was food present in defendant’s residence and that Malachi’s siblings received sufficient nutrition and hydration to survive. Although the evidence clearly depicts Malachi as hungry and dehydrated during the months leading to his death, defendant made no effort to seek medical attention for Malachi during that period of time and, at most, fed Malachi only once each day despite the fact that he served as Malachi’s primary caretaker for a great deal of the time. Thus, the record and the trial court’s findings contain ample evidence tending to show that defendant proximately caused Malachi’s death by intentionally depriving him of needed hydration and nutrition, a showing that amply supports the trial court’s decision to convict defendant of murder by starvation pursuant to G.S. § 14-17(a).

We reject defendant’s contention that murder by starvation is limited to situations involving the complete deprivation of hydration and nutrition. Under that definition, a person who kills someone by withholding virtually all, but not all, food and drink would not be guilty of murder by starvation.

A pathologist originally attributed Malachi’s death to malnutrition. After defendant changed his story to say he had choked Malachi and thrown him across the room, the pathologist amended his autopsy report to attribute Malachi’s death to asphyxia secondary to strangulation. Nonetheless, the record clearly demonstrates that his opinion to that effect rested solely upon the information that defendant provided in his final police interview. Defendant later recanted.

Nevertheless, there was ample expert support for a determination that Malachi died of starvation. Pediatric neurologist Stephanie Robinett said the only that would make a child look like Malachi was “starvation.” Furthermore, the pathologist’s initial autopsy report appears to have been admitted into evidence without limitation, so the trial court was entitled to rely on the pathologist’s initial conclusion that “malnutrition may be the immediate cause of death…”

Finally, there was no fatal variance between the child abuse indictment and the evidence. The indictment charging defendant with negligent child abuse inflicting serious injury alleges that defendant failed to provide Malachi “with medical treatment” for over one year, “despite the child having a disability,” and with failing to “[provide] the child with proper nutrition and medicine, resulting in weight loss and failure to thrive.” The trial court’s determinations that defendant “[allowed] the child to remain in soiled diapers until acute diaper rash formed on the [child’s] groin and bottom,” resulting in “open sores and ulcers,” and that defendant kept “the child in a playpen for so long a period of time that bed sores formed on [his] legs and knees” are fully consistent with the grand jury’s allegations that defendant deprived Malachi of medical treatment, resulting in the infliction of serious bodily injury. As a result, we hold that the trial court’s findings and the relevant allegations of the indictment are fully consistent with each other.

Affirmed.

State v. Cheeks (Lawyers Weekly No. 010-064-21, 36 pp.) (Sam Ervin, J.) Appealed from the Superior Court in Gaston County (Hugh Lewis, J.) On appeal from the Court of Appeals. Kimberly Callahan for the state; Daniel Shatz for defendant. 2021-NCSC-69