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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Car
olina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the
print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be consid
ered authoritative.
STATE OF NORTH CAROLINA v. JUAN CHRISTOPHER SANTIAGO
No. COA01-191
(Filed 28 December 2001)
1. Evidence_expert pediatrician_injury the result of
abuse_admissible
The trial court did not abuse its discretion by permitting a
doctor to testify that an injury to the rectum of a one-month
old child was the result of abuse where defendant contended that
the opinion was based solely on other signs of abuse and that the
doctor was no better qualified than the jury to determine whether
the rectal tear was the result of abuse. The doctor's testimony
was related to a diagnosis based upon her medical examination of
the victim and the doctor was an expert in pediatrics and the
identification of child abuse who had examined thousands of
children.
2. Criminal Law_plea agreement_rejection by judge
There was no error where the trial court rejected a plea
agreement by which defendant would have pled guilty to felonious
child abuse in exchange for dismissing a first-degree sexual
offense charge and a limit on his sentence. A plea agreement
must have judicial approval before it is effective, and a
decision by a judge disapproving a plea agreement is not subject
to appeal. N.C.G.S. § 15A-1023(b).
3. Sexual Offenses_sufficiency of circumstantial evidence_every
reasonable hypothesis of innocence_not required to be
excluded
The trial court did not err by not dismissing a charge of
first-degree sexual offense where the evidence was
circumstantial, but, giving the State the benefit of every
reasonable inference, a reasonable mind might accept it as
adequate to support the conclusion that defendant was responsible
for the child's rectal injury. It is not the rule in North
Carolina that the trial court is required to determine that the
evidence excludes every reasonable hypothesis of innocence.
Appeal by defendant from judgments entered 15 June 2000 by
Judge Loto G. Caviness in Yancey County Superior Court. Heard in
the Court of Appeals 6 December 2001.
Attorney General Roy A. Cooper, III, by Assistant Attorney
General Jennie Wilhelm Mau, for the State.
Appellate Defender Staples Hughes, by Assistant AppellateDefender Mark D. Montgomery, for defendant-appellant.
i>
HUNTER, Judge.
Juan Christopher Santiago (defendant) appeals convictions
for first degree sexual offense and felonious child abuse. We
conclude there was no error in defendant's trial.
Evidence presented at trial tended to establish that defendant
is the father of the victim, Deanna, born 17 October 1999. Andrea
Palazzolo (Palazzolo), Deanna's mother, maintained custody of
Deanna. Although defendant and Palazzolo did not live together,
defendant often spent weekend nights with Palazzolo and Deanna at
Palazzolo's residence.
On 13 November 1999, when Deanna was approximately one month
old, defendant was visiting Palazzolo at her residence. Defendant
told Palazzolo that he had been lying with Deanna on his chest, and
that he had fallen asleep and forgotten she was there. Defendant
told Palazzolo that he woke up and began to roll over when he
realized Deanna was on his chest. Defendant said he had to grab
Deanna quickly to prevent her from falling, and that it may have
caused a bruise. Palazzolo testified that prior to that weekend,
Deanna was a normal baby with a generally happy demeanor.
Palazzolo testified that following the weekend of 13 November 1999,
Deanna's demeanor changed, she stayed up all night screaming,
[n]othing would comfort her, and she could not keep down baby
formula.
Defendant was at Palazzolo's residence again on 19 November
1999. Palazzolo testified she was in the living room and defendantand Deanna were in the bedroom when she heard Deanna scream. When
Palazzolo entered the bedroom, defendant asked if she had any
fingernail clippers. He told Palazzolo that he had been burping
Deanna on his knee when she flung forward, and as he tried to
catch her, his thumb went into her mouth and cut her. Palazzolo
observed that Deanna had blood in her mouth. Palazzolo testified
both she and defendant were taught to burp Deanna over the
shoulder, and that this is the manner in which she had seen
defendant burp Deanna before.
Palazzolo further testified that at approximately 6:00 a.m. on
20 November 1999, she awoke and went to sleep in the living room by
the crib of her nephew so that she could hear him if he awoke.
Palazzolo left defendant alone in the bedroom with Deanna. She
testified that defendant woke her at approximately 10:20 a.m. and
handed her Deanna, who was screaming really bad. Palazzolo
observed that Deanna had a mark on her face. She described the
mark as looking like Deanna's skin had been sucked like a hickey,
and that the mark was circular, with teeth bruise marks.
Defendant testified that while changing Deanna's diaper, he was
trying to calm her down by rubbing [his] teeth on her cheek when
his weight shifted and his teeth hit her cheek. Palazzolo observed
that the whole backside of Deanna's outfit was off, and that her
diaper was half off.
Palazzolo testified that defendant then said he was leaving,
and stated that he was . . . 'going to hell' and was . . .
'going to go kill [him]self.' Defendant told Palazzolo that if
she brought the baby out of the house, he was . . . 'going to goto jail.' He also told Palazzolo that if her mother did not ca
ll
the police, they could . . . 'still make this work out.'
Palazzolo and her mother took Deanna to the police department
later that day. Palazzolo then took Deanna to a hospital where she
was examined by a hospital doctor who reported that Deanna had a
shallow anal tear at the 7:00 position. On 22 November 1999,
Deanna was more thoroughly examined by Dr. Cynthia Brown, who
testified as an expert in pediatrics and identification of child
abuse. Dr. Brown's evaluation of Deanna revealed various
abnormalities, including the bruised oval mark on Deanna's cheek,
an area on the roof of her mouth where the skin had been torn, and
a tear in her rectal area at 12:00 which was more severe than the
shallow tear at 7:00. Testing results also revealed Deanna was
suffering from six rib fractures. Dr. Brown testified that in her
opinion, the abnormalities were the result of abuse, but she never
opined that defendant was the perpetrator.
Defendant was indicted on 19 January 2000 for first degree
sexual offense and felony child abuse. On 6 March 2000, defendant
appeared before the trial court to enter a plea of guilty to
felonious child abuse. The trial court rejected the plea, and a
trial proceeded on both charges. Defendant testified at trial,
denying any wrongdoing. On 15 June 2000, defendant was convicted
by a jury of both charges. Defendant was sentenced to a minimum of
300 and a maximum of 369 months in prison for the sexual offense,
and a minimum of thirty-one and a maximum of forty-seven months in
prison for felonious child abuse. He appeals.
Defendant brings forth three assignments of error on appeal:(1) the trial court erred in allowing Dr. Brown to opin
e that
Deanna's rectal tear was the result of penetration; (2) the trial
court abused its discretion in rejecting defendant's guilty plea;
and (3) the trial court erred in denying defendant's motion to
dismiss the charge of first degree sexual offense. For reasons
stated herein, we conclude defendant's trial was free of error.
I.
[1]Defendant first argues the trial court erred in permitting
Dr. Brown to testify that in her opinion, the injury to Deanna's
rectum was the result of abuse, and that it was caused by
penetration with a foreign object. Defendant contends the sole
basis for Dr. Brown's opinion was that because Deanna exhibited
other signs of injury indicative of abuse, such as the bite mark
and rib fractures, the rectal tear must also have been abuse.
Defendant argues this is not a proper scientific basis for
concluding the rectal tear was the result of abuse, and that Dr.
Brown was no better qualified than the jury to determine whether
the other injuries to Deanna made it more likely that the rectal
tear was the result of abuse. We disagree.
If scientific, technical or other specialized knowledge will
assist the trier of fact to understand the evidence or to determine
a fact in issue, a witness qualified as an expert by knowledge,
skill, experience, training, or education, may testify thereto in
the form of an opinion. N.C. Gen. Stat. § 8C-1, Rule 702(a)
(1999). 'Expert testimony is properly admissible when it can
assist the jury in drawing certain inferences from facts and the
expert is better qualified than the jury to draw suchinferences.'
State v. Mackey, 352 N.C. 650, 657, 535 S.E.2d 555,
558-59 (2000) (citations omitted). An essential question in
determining admissibility of such evidence is '. . . whether the
witness, through study or experience, has acquired such skill that
he is better qualified than the jury to form an opinion on the
subject matter to which his testimony applies.'
Id. at 657, 535
S.E.2d at 559 (citations omitted).
Determining whether expert testimony is admissible is within
the trial court's . . . 'wide discretion,' and a decision of
whether to admit such evidence may only be reversed '. . . upon
a showing that [the trial court's] ruling was so arbitrary that it
could not have been the result of a reasoned decision.'
State v.
Washington, 141 N.C. App. 354, 362, 540 S.E.2d 388, 395 (2000)
(citations omitted),
disc. review denied, 353 N.C. 396, 547 S.E.2d
427 (2001).
We first note defendant did not object to the trial court's
acceptance of Dr. Brown as an expert qualified to testify in
matters of pediatrics and the identification of child abuse. Dr.
Brown testified that in her experience, she has examined some
eight to twelve thousand children. We also note defendant failed
to object to Dr. Brown's testimony when she initially stated that
in her opinion, all of Deanna's injuries, including the rectal
tear, were the result of abuse. 'Where evidence is admitted over
objection, and the same evidence has been previously admitted or is
later admitted without objection, the benefit of the objection is
lost.'
State v. Brooks, 83 N.C. App. 179, 191, 349 S.E.2d 630,637 (1986) (citation omitted).
In any event, we disagree with defendant's characterization of
Dr. Brown's testimony to the extent he maintains her opinion was
based solely on the fact Deanna exhibited other injuries in
addition to the rectal tear, and that it was not scientifically
supported. Dr. Brown described in detail the procedures she used
in evaluating Deanna, including the use of a coposcope, a device
which allowed her to examine Deanna's rectal tear in great detail.
Dr. Brown testified she has seen similar injuries in several
children. She further stated there exists medical significance to
the fact that Deanna had a bite mark on her face which appeared
about the same time as the rectal tear. Dr. Brown testified that
such bite marks, characterized as 'suck bruise[s],' principally
occur on children in one of two settings: (1) where a parent is
trying to teach a child not to bite others, and (2) where children
have been sexually abused. According to Dr. Brown, the mark on
Deanna's cheek was typical of the kind of bite/suction mark of the
second category, which indicates that the [perpetrator] has
applied suction and that is felt to indicate kind of a sexual
process.
Dr. Brown further testified that when a child has multiple
injuries, doctors must examine the child's history to understand
how the injuries occurred, whether a reasonable and plausible
explanation has been given, and whether the explanation explains
the forces necessary to cause the injuries seen. She stated that
in Deanna's case, based upon the number of injuries, the nature of
the injuries, and the implausible explanations given, she believedall of the injuries were the result of abuse. She testified she
was not given a plausible explanation as to how the rectal tear
occurred, and that, based upon her examination of Deanna and all of
her observations, she was highly suspicious that the injury
resulted from penetration by a foreign object.
Our courts have consistently upheld the admission of expert
testimony that a victim was sexually abused.
State v. Youngs, 141
N.C. App. 220, 226, 540 S.E.2d 794, 798 (2000),
appeal dismissed
and disc. review denied, 353 N.C. 397, 547 S.E.2d 430 (2001).
'[W]here the expert's testimony relates to a diagnosis derived
from the expert's examination of the [child] . . . in the course of
treatment, it is not objectionable because it . . .
states an
opinion that abuse has occurred.'
Id. at 226, 540 S.E.2d at 799
(citations omitted). Accordingly, an expert may testify to his
opinion that a child has been sexually abused as long as this
conclusion relates to a diagnosis based on the expert's examination
of the child during the course of treatment.
Id. at 227, 540
S.E.2d at 799.
In this case, Dr. Brown's testimony that in her opinion
Deanna's rectal tear was the result of abuse by penetration was
related to a diagnosis based upon her medical examination of
Deanna. We disagree with defendant that the jury was just as
qualified as Dr. Brown, an expert in pediatrics and identification
of child abuse who has examined thousands of children, to determine
whether the nature of Deanna's injuries was indicative of abuse,
and to ascertain whether Deanna's rectal tear was likely the resultof penetration.
Our decision is clearly supported by case law involving the
admission of similar testimony.
See,
e.g.,
State v. Starnes, 308
N.C. 720, 733, 304 S.E.2d 226, 233-34 (1983) (expert's opinion
testimony that tears in child's genital area were likely caused by
a penis was admissible where based upon expert's observations,
physical examination of child, and expert's experience);
State v.
Crumbley, 135 N.C. App. 59, 66, 519 S.E.2d 94, 99 (1999) (expert's
opinion testimony that child's narrow hymen could have been caused
by penetration and that child had been sexually abused held
admissible where testimony was based on expert's own medical
examination of child and expert's knowledge of child abuse
studies).
Moreover, contrary to defendant's assertion, Dr. Brown never
testified that defendant was the person who caused Deanna's rectal
injury, or any of the other injuries she sustained. Dr. Brown
simply testified as to the injuries she observed on Deanna, and her
expert medical opinion as to the cause of such injuries. Defendant
has failed to show the introduction of Dr. Brown's testimony was an
abuse of the trial court's wide discretion and so arbitrary that it
could not have been the result of a reasoned decision. This
assignment of error is overruled.
II.
[2]By his next assignment of error, defendant argues the
trial court erred in rejecting his plea agreement. Defendant
appeared before the trial court on 6 March 2000 to plead guilty tothe charge of felonious child abuse in exchange for the dismissal
of the first degree sexual offense charge and a limit on his
sentence of a minimum of twenty and a maximum of thirty-three
months with credit for time served. The trial court rejected the
plea, expressing concern that the arrangement would only subject
defendant to a maximum of an additional year and a half in prison.
A plea arrangement involving a recommended sentence must have
judicial approval before it is effective. N.C. Gen. Stat. §
15A-1023(b) (1999). It is well established in this State that a
lack of judicial approval renders a proposed plea agreement 'null
and void.'
State v. Johnson, 126 N.C. App. 271, 274, 485 S.E.2d
315, 317 (1997) (citation omitted). The statute further provides
that [a] decision by the judge disapproving a plea arrangement is
not subject to appeal. N.C. Gen. Stat. § 15A-1023(b). We
therefore reject this argument. Although defendant cites various
federal and state constitutional provisions, arguing rejection of
the plea was fundamentally unfair, our Supreme Court has noted
that '[a] plea bargain standing alone is without constitutional
significance; in itself it is a mere executory agreement which,
until embodied in the judgment of a court, does not deprive an
accused of liberty or any other constitutionally protected
interest.'
State v. Wallace, 345 N.C. 462, 467, 480 S.E.2d 673,
676 (1997) (quoting
Mabry v. Johnson, 467 U.S. 504, 507, 81 L. Ed.
2d 437, 442 (1984)).
III.
[3]In his final argument, defendant contends the trial courterred in denying his motion to dismi
ss the charge of first degree
sexual offense. Defendant argues the evidence gave rise to no more
than a suspicion that defendant committed a sexual offense.
In reviewing the denial of a motion to dismiss for
insufficient evidence, the trial court must . . . 'consider the
evidence in the light most favorable to the State and give the
State every reasonable inference to be drawn therefrom.'
State v.
Bowers, 146 N.C. App 270, 273, 552 S.E.2d 238, 240 (2001) (citation
omitted). A trial court must deny a motion to dismiss where there
exits substantial evidence -- whether direct, circumstantial, or
both -- to support a finding that the offense charged has been
committed and that the defendant committed it.
State v. Locklear,
322 N.C. 349, 358, 368 S.E.2d 377, 383 (1988). Substantial
evidence is relevant evidence that a reasonable mind might accept
as adequate to support a conclusion.
State v. Vick, 341 N.C. 569,
583-84, 461 S.E.2d 655, 663 (1995). [I]f the trial court
determines that a reasonable inference of the defendant's guilt may
be drawn from the evidence, it must deny the defendant's motion [to
dismiss] even though the evidence may also support reasonable
inferences of the defendant's innocence.
State v. Clark, 138 N.C.
App. 392, 402-03, 531 S.E.2d 482, 489 (2000),
cert. denied, 353
N.C. 730, 551 S.E.2d 108 (2001).
Initially, we reject defendant's argument that [e]ven if the
evidence were sufficient to support a reasonable inference that the
defendant inserted some object into the rectum of his 33 day old
daughter, this would not constitute a first degree sexual offense. Our legislature has determined that a first degree sexual offense
occurs when a person engages in a sexual act [w]ith a victim who
is a child under the age of 13 years and the defendant is at least
12 years old and is at least four years older than the victim.
N.C. Gen. Stat. § 14-27.4(a)(1) (1999). A sexual act is defined
in pertinent part as the penetration, however slight, by any
object into the genital or anal opening of another person's body:
provided, that it shall be an affirmative defense that the
penetration was for accepted medical purposes. N.C. Gen. Stat. §
14-27.1(4) (1999). Clearly, the insertion of an object into
Deanna's rectum by defendant would constitute a first degree sexual
offense.
Moreover, we hold the evidence, taken in the light most
favorable to the State, was sufficient to allow the charge to be
submitted to the jury. The medical evidence presented established
that Deanna suffered from two anal tears, a shallow tear at the
7:00 position, and a more severe tear at the 12:00 position. Dr.
Brown's testimony, which we have previously held to be proper,
provided an expert medical opinion that Deanna's rectal tear at
12:00 was the result of penetration. Her testimony also
established a medical connection between the tear and the 'suck
bruise' mark on Deanna's cheek, which Dr. Brown testified is often
a sexual mark which appears concurrently with other sexual abuse
injuries. Dr. Brown testified the mark on Deanna's cheek had
bruising around it suggesting suction and prolonged mouth to skin
contact, and was therefore consistent with the type of mark
indicative of sexual abuse. She further testified that based uponher information, the cheek bruise and the penetration injury were
noted to have appeared about the same time. Defendant admitted
to having inflicted the mark on Deanna's cheek on the morning of 20
November 1999 when he had exclusive control of Deanna.
The evidence also established that on 20 November 1999,
defendant maintained exclusive control of Deanna from approximately
6:00 a.m. until 10:30 a.m. when he handed Deanna to Palazzolo and
stated he was . . . 'going to go kill [him]self.' Palazzolo
testified that Deanna was screaming really bad and the whole
back part [of her outfit] was off. The diaper was kind of like
half off. She further testified Deanna's cheek looked like it
had been sucked like a hickey and had teeth bruise marks.
Defendant continued to make several statements immediately
following the incident, including: 'I'm going to hell'; '[i]f
you take this baby out of the house, I'm going to go to jail'; 'I
guess we're not going to my dad's house for Thanksgiving'; and
'[i]f your mom doesn't call the police, we can still make this
work out.'
Although the evidence that defendant committed the sexual
offense is circumstantial, [c]ircumstantial evidence may be
utilized to overcome a motion to dismiss 'even when the evidence
does not rule out every hypothesis of innocence.'
State v.
Golphin, 352 N.C. 364, 458, 533 S.E.2d 168, 229 (2000) (citations
omitted),
cert. denied, __ U.S. __, 149 L. Ed. 2d 305 (2001);
see
also Clark, 138 N.C. App. at 403, 531 S.E.2d at 489 ([a]lthough
the State's case centered around circumstantial evidence, taken inthe light most favorable to the State, it was sufficient to
withstand the defendant's motions to dismiss).
Giving the State the benefit of every reasonable inference to
be drawn from the evidence, we hold there is sufficient evidence as
a reasonable mind might accept as adequate to support the
conclusion that defendant was responsible for inflicting Deanna's
rectal injury. Defendant contends it was possible that Gary
Norton, an older friend who lived with Palazzolo, was responsible
for the abuse. However, defendant did not present any evidence at
trial that Norton or any other individual abused Deanna. In any
event, [i]t is not the rule in this jurisdiction that the trial
court is required to determine that the evidence excludes every
reasonable hypothesis of innocence before denying a defendant's
motion to dismiss.
State v. Smith, 146 N.C. App. 1, 7, 551 S.E.2d
889, 893 (2001). The trial court did not err in denying
defendant's motion to dismiss the charge of first degree sexual
offense.
Defendant's additional assignments of error which he has not
set forth or argued in his brief are deemed abandoned. N.C.R. App.
P. 28(a).
No error.
Judges McGEE and BRYANT concur.
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