Appeal by defendant from judgment entered 29 July 1998 by
Judge Robert Frank Floyd, Jr. in Superior Court, Brunswick County.
Heard in the Court of Appeals 5 January 2000.
Attorney General Michael F. Easley, by Special Deputy Attorney
General Mabel Y. Bullock, for the State.
Marjorie S. Canaday for defendant-appellant.
TIMMONS-GOODSON, Judge.
On 12 April 1997, an emergency medical technician andvolunteer ambulance driver, Shannon Parks (“Parks”),
answered a
call to transport a fifteen month-old child, David Cody Rhinehart
(“the child”), to the emergency room of Columbia Brunswick
Hospital. The mother of the child, Robyn Lynn Noffsinger
(“defendant”), and her boyfriend, David Tripp, Jr. (“Tripp”),
transferred the child from their vehicle to the ambulance. At the
hospital, Parks observed bruises on the child and believed that he
was barely breathing. Parks saw defendant and Tripp outside the
emergency room, talking and laughing.
David Crocker (“Crocker”), a detective who was present at the
hospital on 12 April 1997, heard defendant express fear that she
would be arrested if Tripp left her alone. Around 11:00 p.m.,
defendant told Tripp that they needed to tell Crocker something,
and Tripp told Crocker that the bath water was too hot. Crocker
noticed that defendant had small hands and normal length
fingernails while Tripp had unusually long fingernails.
Keith Smith (“Smith”), a detective with the Brunswick County
Sheriff's Department, arrived at the hospital and observed that the
child had bruises and a clouded eye. Smith spoke with defendant,
who knew Smith was investigating possible child abuse. Defendant
told Smith that she had picked up the child about two weeks earlier
from the home of Frederick and Laura May Proffitt. Defendant
noticed that the child had three bruises on his head and was told
by the Proffitts that the child had fallen. Acquaintances informeddefendant that there may have been drug use in the Proffitt home
and that the child had been mistreated there. Defendant also told
Smith that after she picked up the child from the Proffitt home, he
did not sleep well, cried often, beat his head against the wall,
hit himself with a baby bottle, and had a constant fever.
Defendant tried to comfort the child by holding him and giving him
Oragel, aspirin, and various drinks.
Defendant indicated to Smith that on 11 April 1997, Tripp gave
the child a bath and told defendant that the skin on the child's
buttocks was coming off. Defendant applied A & D ointment. In
defendant's opinion, the burns were a reaction to blueberry Hi-C
that the child had drunk. On 12 April 1997, Tripp again bathed the
child. According to defendant, she observed through a crack in the
door that the child fell in the tub, bumped his head, and slippedseveral times after Tripp picked him up. After the bath, the child
appeared sleepy and Tripp took him upstairs. Soon thereafter,
Tripp observed that the child could not breathe and he attempted
CPR.
Dr. Richard Alexander (“Alexander”), who was working in the
emergency room on 12 April 1997, observed that the child was not
breathing, that he had a head fracture, abnormal pupil response,
facial bruising, deformity on an arm and a leg, and a burned area
in the diaper region, and that the child was having seizures.
Alexander placed the child on oxygen, administered medications to
support blood pressure and control heart rate, and inserted a
catheter. He then made arrangements to transport the child to Duke
Medical Center for surgery to relieve pressure on the brain.
According to Alexander, the head injury and bruises were about
one or two days old and the injury to the buttocks was not from
diaper rash or an allergic reaction. The bruising to the head
would have required substantial force by squeezing. Alexander
admitted that it was unlikely that a person without medical
training would be able to recognize certain of the child's medical
problems or know their causes or likely time of occurrence.
Detective Gene Caison (“Caison”) accompanied Detective Smith
to the Tripp home on 12 April 1997. Defendant had been living in
the Tripp home since January of 1997, but the child did not live in
the Tripp house until the last Sunday of March 1997. Present in
the Tripp home on 12 April 1997 were David Tripp, Sr., his
bedridden wife, James Dodson, Walter, and T.J., defendant's two andone-half year-old son. Caison admitted that David Tripp, Jr. was
a caretaker of the child on three dates on which Caison alleged
injuries occurred.
Dr. Karen St. Clair (“St. Clair”), a pediatrician at Duke
Medical Center, treated the child on 13 April 1997 in the intensive
care unit at Duke. St. Clair testified that the child was in
critical condition, comatose, and had been placed on life support
systems. St. Clair believed that the burns in the buttocks and
genital area had been caused by immersion in a hot liquid. She
described bruises and lesions and testified that x-rays showed
spiral fractures and a buckle fracture in the legs and fractures of
the left arm and wrist. St. Clair also described injury to the
outer part of the child's eye from some type of trauma as well as
blood in the fluid of both eyes. While draining fluid from the
brain saved the child's life, the head injury caused brain damage
such that only the brain stem remained normal. According to St.
Clair, the child would be extremely impaired and would have no
thinking processes.
St. Clair testified that the burns occurred within a couple of
days of her treating the child. She estimated that the head injury
occurred several days before she saw the child. The head injury
would have required a forceful impact and could not have been self-
inflicted, in St. Clair's opinion. The lower left leg fractures
occurred anywhere from minutes before the x-rays were taken to
seven days before. Fractures of the left forearm occurred between
five days and three weeks before the x-rays. Rib fracturesoccurred five to seven days before the x-rays. The facial bruising
may have occurred a matter of days before she saw it while head
bruises were less than seven days old. A split lower lip was two
or three days old and puncture marks on the right leg and scratch
marks on the face were very recent. The puncture marks appeared to
have been made by fingernails. St. Clair testified that the child
suffered from battered child syndrome.
When St. Clair interviewed defendant and Tripp after midnight
at the hospital, she did not feel that defendant comprehended what
she was telling her and defendant occasionally appeared to doze.
Defendant and Tripp indicated to St. Clair that the child's
injuries had been caused by two baths given by Tripp. Also, they
indicated that the child had fallen from a chair onto a vacuum
cleaner and that Tripp accidentally hit the child in the eye with
his elbow when rising from a settee.
On 1 May 1997 and 9 May 1997, Caison interviewed defendant at
the sheriff's department and taped the interview. Caison
interviewed Tripp separately. In the interviews, defendant stated
that she visited the child while he was living in the Proffitt home
from January 1997 until Easter Sunday, 1997. She observed that the
child was usually sleepy and stopped walking and talking while
there. When she took the child with her on Easter Sunday, she
noticed that he had bruises and swelling on his forehead and
favored one leg. She believed the leg problem was a result of
tight shoes. The child whined and cried frequently during his
first week home after Easter, but defendant did not take him to thehospital for fear she would be accused of mistreating him.
Defendant denied hurting the child herself and was certain that the
Proffitts had caused his injuries.
In his interview, Tripp admitted that he gave the child a bath
on 11 April 1997 and that the water may have been too hot,
resulting in burns to the child. Defendant was downstairs and
heard the child cry out. She asked Tripp if everything was alright
and he said yes, but the water was a little too hot. Defendant did
not look in the bathroom because the child stopped crying. Later
in the evening, defendant saw that the child's skin was peeling off
and she applied A & D ointment. Tripp gave the child another bath
on the following night and the child fell and hurt himself. When
defendant entered the bathroom and asked if the child was alright,
Tripp indicated that he was fine. About thirty minutes after the
bath, the child began throwing up and acting sleepy.
On 9 May 1997, Caison went to the Tripp home again and
arrested defendant and Tripp. According to Caison's description,
Tripp was age twenty-four, about six feet tall, with longer than
normal fingers and finger nails.
At trial, defense counsel called Tripp to the stand where he
asserted the Fifth Amendment and refused to answer any questions.
Defense counsel entered into evidence judgments entered on 21 July
1998 sentencing Tripp to active imprisonment for three counts of
felony child abuse and suspending sentence against Tripp for a
fourth count of felony child abuse. Tripp pled guilty to the four
counts of felony child abuse pursuant to an Alford plea. Following a jury verdict of guilty of three counts of fel
ony
child abuse, defendant was sentenced to three consecutive terms of
a minimum of thirty-one months with the corresponding maximum of
forty-seven months. Defendant appeals.
At issue on appeal is whether the trial court erred in: (I)
denying defendant's motion to dismiss the indictments; (II)
instructing the jury on aiding and abetting; (III) finding the
aggravating factor that defendant joined with more than one other
person in committing the offense; and (IV) failing to find the
mitigating factor that defendant was a passive participant.
[1]By her first assignment of error, defendant argues that
the trial court erred in denying her motion to dismiss the
indictments because the prosecution failed to present substantial
evidence that defendant was the perpetrator or possessed the
requisite intent. We cannot agree.
In ruling on a defendant's motion to dismiss for insufficiency
of the evidence, the trial court must determine whether there is
substantial evidence of each essential element of the crime charged
and of the defendant's identity as the perpetrator.
State v.
Barrett, 343 N.C. 164, 469 S.E.2d 888,
cert. denied, 519 U.S. 953,
136 L. Ed. 2d 259 (1996). Substantial evidence is “such relevant
evidence as a reasonable mind might accept as adequate to support
a conclusion.”
State v. Brown, 310 N.C. 563, 566, 313 S.E.2d 585,
587 (1984). Substantial evidence is “existing and real, not just
seeming and imaginary.”
State v. McKenzie, 122 N.C. App. 37, 45,468 S.E.2d 817, 824 (1996) (citations omitted). The motion sho
uld
be allowed if the evidence merely raises a suspicion or conjecture
regarding the commission of the crime or the defendant's identity
as the perpetrator, even where the suspicion is strong.
State v.
Powell, 299 N.C. 95, 261 S.E.2d 114 (1980).
“[A]ll the evidence admitted, whether competent or
incompetent, must be considered by the trial judge in the light
most favorable to the State, giving the State the benefit of every
reasonable inference that might be drawn therefrom.”
Brown, 310
N.C. at 566, 313 S.E.2d at 587. The evidence may be direct or
circumstantial.
Barrett, 343 N.C. at 172, 469 S.E.2d at 893
.
Contradictions in the evidence should be resolved by the jury.
Brown, 310 N.C. at 566
, 313 S.E.2d at 587.
The jury also
determines the weight and credibility of the evidence.
See N.C.
Gen. Stat. § 8C-1, Rule 104(e) (1999).
The felony child abuse statute provides in relevant part:
A parent or any other person providing care to
or supervision of a child less than 16 years
of age who intentionally inflicts any serious
physical injury upon or to the child or who
intentionally commits an assault upon the
child which results in any serious physical
injury to the child is guilty of a Class E
felony.
N.C. Gen. Stat. § 14-318.4(a) (1993). In determining whether the
requisite intent is present, the jury may consider “the acts and
conduct of the defendant and the general circumstances existing at
the time of the offense charged.”
State v. Riggsbee, 72 N.C. App.
167, 171, 323 S.E.2d 502, 505 (1984).
A child who has been diagnosed with “battered child syndrome”has suffered severe and numerous injuries su
ch that it is logical
to presume that the injuries were not caused by accidental means or
by an isolated contact with a stranger, but instead were caused
intentionally by the child's caretaker.
State v. Wilkerson, 295
N.C. 559, 247 S.E.2d 905 (1978).
See also State v. Byrd, 309 N.C.
132, 305 S.E.2d 724 (1983),
overruled on other grounds by State v.
Childress, 321 N.C. 226, 362 S.E.2d 263 (1987). When a child is
diagnosed with battered child syndrome, a permissible inference
arises that the child's caretakers intentionally inflicted his
injuries.
Byrd, 309 N.C. 132, 305 S.E.2d 724.
In the present case, Dr. St. Clair diagnosed the child with
battered child syndrome. According to Dr. St. Clair, the head
injury was the result of great force and could not have been caused
by accident. Furthermore, Dr. Alexander testified that the
bruising to the head would have required substantial force by
squeezing. The child suffered numerous, severe injuries which were
inflicted on various occasions, including burns, head trauma,
fractures to the leg, arm and ribs, facial bruising, and puncture
marks. Therefore, it is logical to presume that the child's
injuries were not accidental and that they were caused by his
caretaker.
According to the testimony of Doctors St. Clair and Alexander,
the majority of the child's injuries were inflicted in the two
weeks prior to his admission to the hospital on 12 April 1997.
Numerous injuries, such as the head injury, bruises, puncture
wounds, and burns took place one to three days before the child wasadmitted to the hospital.
Defendant stated that the child was mistreated while staying
in the home of Frederick and Laura May Proffitt and had already
sustained injuries when she retrieved him the last Sunday in March
of 1997. However, the child had stayed at the Proffitt home more
than two weeks before his admission to the hospital. Thus, the
evidence does not support defendant's assertion that the injuries
were inflicted at the Proffitt residence.
Defendant and Tripp both had care of the child in the two
weeks prior to his admission. The occupants of the Tripp family
home also had continuing opportunity to inflict the injuries in
that defendant, Tripp, and the child were living in the Tripp home
during the two weeks in issue. Defendant stated in an interview
which was presented to the jury by video and redacted transcript
that no member of the Tripp household abused the child. She
further stated that Tripp had not injured the child. “[Tripp's]
good with my kids. And ain't nobody going to tell me no
different.”
We find substantial evidence from which the jury could find
that defendant intentionally perpetrated the abuse against the
child. Defendant's statements that the child suffered injuries in
the Proffitt home are in conflict with the medical testimony and
must be resolved by the jury. Furthermore, defendant's statements
that the child suffered a series of accidents such as falling onto
a vacuum cleaner and that he beat his own head against the wall
contradict medical testimony that the injuries could not have beenself-inflicted. As defendant's conduct is relevant evidence of
intent, we note that according to her own statement, defendant did
not take the child to the doctor earlier for fear that she would be
accused of mistreating him, even while his injuries and deformities
were glaringly apparent. When the child was finally admitted to
the hospital in critical condition, the ambulance driver observed
defendant laughing and talking with Tripp outside of the emergency
room. Defendant appeared to doze as Dr. St. Clair informed
defendant and Tripp of the child's condition. In light of the
inference that the child's injuries were intentionally inflicted by
a caretaker and in light of defendant's statements which exonerate
each member of the Tripp household, relevant evidence exists which,
when taken in the light most favorable to the State, adequately
supports the conclusion that defendant intentionally inflicted the
injuries on the child.
[2]Moreover, while the verdict sheets do not indicate on
which theory the jury relied, the jury may have found defendant
guilty on grounds that she aided and abetted Tripp in committing
felony child abuse. A person who aids or abets another in the
commission of a crime is equally guilty with that other person as
principal.
State v. Owens, 75 N.C. App. 513, 331 S.E.2d 311,
disc.
review denied, 314 N.C. 546, 335 S.E.2d 318 (1985).
As a general rule of American jurisprudence, criminal
liability is not imposed for failure to rescue another person from
harm.
State v. Walden, 306 N.C. 466, 474-75, 293 S.E.2d 780, 786
(1982). However, a parent owes a special duty to her child whichhas long been recognized by statute and by the common law.
Id. at
475, 293 S.E.2d at 786. As such, a parent has a duty to take
affirmative action to protect her child and may be held criminally
liable if she is present when someone harms her child and she does
not take reasonable steps to prevent it.
Id. “[W]e hold that the
failure of a parent who is present to take all steps reasonably
possible to protect the parent's child from an attack by another
person constitutes an act of omission by the parent showing the
parent's consent and contribution to the crime being committed.”
Id. at 476, 293 S.E.2d at 787.
In the present case, substantial evidence exists that Tripp
harmed the child in that he pled guilty pursuant to an Alford plea
to four counts of felony child abuse arising out of these facts.
According to her own statements, defendant was present when some of
the child's injuries occurred. For example, in her taped
interview, defendant indicated that she was present when the child
inflicted injuries on himself by beating his head against the wall
and hitting himself with his baby bottle:
Lt. Crocker: Yes. How many times did you see
him do this? Beat his--
[Defendant]: Beat his head?
Lt. Crocker: Yeah.
[Defendant]: Quite a few.
Later in the interview, when Lieutenant Crocker remarked that the
child's injuries could not have been sustained by the child beating
his own head, defendant responded, “I'm just saying what I saw.”
Defendant also stated that she was present when Tripp accidentally
hit the child in the face with his elbow: [Defendant]: . . . The baby--When [Tripp] went
to start to get up [Tripp's] elbow had
collided with the baby's eye. And the baby
didn't cry or nothing, you know.
Lt. Crocker: But you saw this?
[Defendant]: Yes, I saw that with--
Lt. Crocker: Who else was in the room?
[Defendant]: --my own two eyes.
Defendant also indicated that she was present when the child
injured himself by falling from a chair onto a vacuum cleaner.
Defendant owed the child a special duty in that she was his
mother. By her own statements, defendant was present when the
child sustained injuries, but she did not seek medical attention
for the child until his condition was critical even while his
injuries were visible to the naked eye. As stated above, we may
infer that the child's injuries were not accidental based on his
diagnosis as a battered child. We conclude that substantial
evidence exists that defendant did not take affirmative steps to
protect her child from attack by another person. As such, a
reasonable mind could determine that defendant consented and
contributed to the crime. Therefore, a jury could have found
defendant guilty of felony child abuse beyond a reasonable doubt on
a theory of aiding and abetting and the trial court properly
submitted the issue to the jury.
By her second assignment of error, defendant argues that the
trial court erred in instructing the jury on aiding and abetting in
that the instruction was not supported by the evidence. We cannot
agree.
“Where jury instructions are given without supporting
evidence, a new trial is required.”
State v. Porter, 340 N.C. 320,331, 457 S.E.2d 716, 721 (1995). In the present case, on two
occasions, the trial court instructed the jury on aiding and
abetting as follows:
A person may be also guilty of felonious child
abuse, although she personally does not do any
of the acts necessary to constitute that
crime. A person who aids and abets another to
commit a crime is guilty of that crime. You
must clearly understand that if she does aid
and abet, she is guilty of the crime just as
if she had personally done all the acts
necessary to constitute that crime. Now, I
charge that for you to find the defendant
guilty of felonious child abuse because of
aiding and abetting, the State must prove
three things beyond a reasonable doubt.
First, that the crime was committed by some
other person. I have previously instructed
you on the elements of felonious child abuse.
Second, that the defendant knowingly
encouraged or aided the other person to commit
that crime. Third, that the defendant's
actions or statements caused or contributed to
the commission of the crime by that other
person. So, I charge that if you find from
the evidence beyond a reasonable doubt that on
or about the alleged dates some other persons
other than the defendant committed felonious
child abuse and that the defendant knowingly
encouraged or aided the other person to commit
the crimes and that in so doing the
defendant's actions or statements caused or
contributed to the commission of the crime by
the other person, it would be your duty to
return a verdict of guilty of felonious child
abuse. However, if you do not so find or have
a reasonable doubt as to one or more of these
things, it would be your duty to return a
verdict of not guilty.
As stated above, we believe that substantial evidence exists
from which a jury could find defendant guilty of felony child abuse
under a theory of aiding and abetting. In light of defendant's
admitted presence during the time period when some of the injuries
occurred, her special duty as a parent, and her failure tointervene or take immediate action following the injuries,
defendant can be said to have encouraged and contributed to the
commission of the abuse. As such, the trial court did not err by
instructing the jury on aiding and abetting.
[3]By her third assignment of error, defendant argues that
the trial court erred in finding as an aggravating factor that
defendant joined with more than one other person in committing the
offense in that the State failed to prove the factor by a
preponderance of the evidence. We agree.
The State bears the burden of proving by a preponderance of
the evidence that an aggravating factor exists. N.C. Gen. Stat. §
15A-1340.16(a) (1999). In the present case, the trial court found
as a statutory aggravating factor that “[t]he defendant joined with
more than one other person in committing the offense and was not
charged with committing a conspiracy.” The State concedes in its
brief that the State failed to meet its burden to prove the
aggravating factor. As such, we hold that the trial court erred in
finding as an aggravating factor that defendant joined with more
than one other person in committing the offense and was not charged
with committing a conspiracy. Therefore, defendant is entitled to
a new sentencing hearing.
[4]By her fourth assignment of error, defendant argues that
the trial court erred in failing to find the mitigating factor that
defendant was a passive participant when the evidence in support of
the factor was uncontradicted and substantial. We cannot agree.
The defendant bears the burden of proving any mitigatingfactors by the preponderance of the evidence.
State v.
Canty, 321
N.C. 520, 364 S.E.2d 410 (1988). In order to establish that the
trial court erred in failing to find a mitigating factor, the
defendant must show that the evidence clearly establishes the fact
in issue such that no reasonable inferences to the contrary can be
drawn.
State v. Jones, 309 N.C. 214, 306 S.E.2d 451 (1983). The
trial court errs in failing to find a mitigating factor where the
evidence tending to prove the factor is uncontradicted,
substantial, and manifestly credible.
State v. Blackwelder, 309
N.C. 410, 306 S.E.2d 783 (1983).
In the present case, the evidence suggests that defendant
either perpetrated the abuse or was present when her child was
severely and repeatedly injured by Tripp and that she did not seek
medical attention for her child for fear that she would be accused
of mistreating him. Defendant offered various explanations for her
child's injuries, stating that the child suffered an allergic
reaction to Hi-C, that the child fell on to a vacuum cleaner, and
that Tripp accidentally hit the child in the face with his elbow as
he arose from a settee. The evidence that defendant was not an
active participant in the abuse of her child consisted of her own
testimony. However, a reasonable mind could determine that
defendant perpetrated the abuse to her child or contributed to the
abuse in that she was present when he was injured and she owed him
a special duty as his parent. We hold that defendant failed to
present substantial, manifestly credible evidence that she was a
passive participant in the abuse of her child. As such, the trialcourt was not required to find as a mitigating factor that
defendant was a passive participant.
For the reasons stated herein, we find no error in
defendant's trial. However, we find that the trial court erred in
finding as an aggravating factor that defendant joined with more
than one other person in committing the offense. Therefore, we
remand for a new sentencing hearing.
No error; remanded for a new sentencing hearing.
Judges MARTIN and HORTON concur.
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