Appeal by defendant from judgments dated 4 June 2001 by Judge
Lindsay R. Davis in Rockingham County Superior Court. Heard in the
Court of Appeals 8 October 2002.
Attorney General Roy Cooper, by Assistant Attorney General
Kirk Randleman, for the State.
C. Orville Light for defendant appellant.
GREENE, Judge.
Christopher Leon Carter, Sr. (Defendant) appeals judgments
dated 4 June 2001 entered consistent with a jury verdict finding
him guilty of felony child abuse and assault with a deadly weapon
inflicting serious injury.
After being charged on 2 October 2000 with (1) felony child
abuse for intentionally committing an assault resulting in serious
physical injury and (2) assault with a deadly weapon inflicting
serious injury on his three-year-old son C.J., Defendant petitioned
the trial court for the aid of a child psychologist to assist in
his defense. In an order dated 22 May 2001, the trial court
authorized Defendant to spend up to $1,000.00 to obtain the
services of a child psychologist to assist in the case. The order,
however, did “not authorize the psychologist to examine [C.J.]” Defendant subsequently filed a motion in limine dated 29 May 2001
in which he requested that the State be prohibited from introducing
any hearsay declarations made by C.J. during his hospitalization
between 9 and 10 August 2000.
During the voir dire hearing on the motion in limine, the
nurses and doctors who had talked to C.J. during his
hospitalization testified they had examined C.J. and upon asking
him what was wrong with him, C.J. had told each of them “my daddy
kicked me.” The trial court found C.J.'s statements, spoken in a
medical environment to personnel who were dressed in medical
clothing and performing routine medical assessments, were made for
the purpose of diagnosing and treating C.J. The trial court
concluded the statements were thus properly admissible under the
medical treatment exception to the hearsay rule.
Defendant also requested an examination of C.J. by a
psychologist. Defendant argued to the trial court that “unless
[C.J. was] voluntarily produced for [Defendant's] psychological
expert to examine [him] . . . [, C.J.'s] declarations . . . should
be inadmissible.” The trial court denied Defendant's motion.
At trial, Janet Vercellino (Vercellino), a nurse at the
Morehead Memorial Hospital, testified she first met C.J. when his
grandmother brought him to the emergency room on the morning of 9
August 2000. Vercellino asked C.J. what was wrong with him,
whereupon C.J. replied “[d]addy kicked me.” When Vercellino
inquired where C.J. was hurting, he pointed to the left side of his
abdomen. After Vercellino took C.J.'s vital signs, C.J. wasexamined by two more nurses. Both of the nurses testified at trial
that, upon inquiry, C.J. had told them “my daddy kicked me.”
Defendant did not object to the nurses' testimony.
Dr. Richard Medlin (Dr. Medlin) testified he had reviewed
C.J.'s CAT scan and determined C.J. to have a transection of the
pancreas, meaning it “was cut in half.” As this was a potentially
fatal injury, Dr. Medlin arranged C.J.'s transfer to another
hospital where he underwent surgery the next day. According to Dr.
Medlin, the type of injury sustained by C.J. was “extremely
unusual.” When asked whether a child could injure himself in this
manner by falling off a bed, Dr. Medlin explained this “would be
very unusual” because “this is a high-energy injury” requiring a
lot of force. Furthermore, once this type of injury was sustained,
Dr. Medlin would have expected symptoms to manifest themselves
within minutes as opposed to days.
Dr. Shelley Kreiter (Dr. Kreiter), who testified as an expert
in pediatrics with specialties in child abuse and neglect,
testified C.J.'s injury was not only traumatic but consistent with
having been kicked. Kreiter further stated C.J. “would not have
fallen on a barbell on Monday,” as alleged by Defendant, “and been
a well child on Tuesday only to be a severely ill, a sick child
needing surgery on Wednesday. There was too long of a well period
in there.” Dr. Charles Turner (Dr. Turner), whom the trial court
recognized as an expert in the field of pediatric surgery,
explained “[t]here[ was] a significant energy to cause a rupture of
the pancreas.” This energy would be closely equivalent to theenergy involved in a “car wreck.” Over Defendant's objection, Dr.
Turner testified C.J. had told him “[m]y father kicked me.”
At the close of the State's evidence, Defendant moved to
dismiss the charges against him. The trial court denied the
motion, and Defendant proceeded to call his witnesses. C.J.'s
mother, Kimberly Dillard Carter (Carter), testified for the defense
that two days prior to being hospitalized C.J. had fallen off his
bed and landed on a barbell. When she had asked C.J. if he was all
right, he had told her he was. Carter and Defendant, however,
noted that C.J. did not have much of an appetite after this
incident.
At the close of all the evidence, Defendant renewed his motion
to dismiss, which was again denied. The jury subsequently found
Defendant guilty of felony child abuse and assault with a deadly
weapon inflicting serious injury, and the trial court sentenced
Defendant to two consecutive prison terms.
__________________________
The issues are whether the trial court erred in: (I) admitting
C.J.'s statements under the medical treatment exception to the
hearsay rule without (1) affording Defendant an opportunity to have
C.J. examined by a defense psychologist and/or (2) to
voir dire
C.J. as to his intent when he made the statements in question; (II)
denying Defendant's motion to dismiss; and (III) failing to arrest
one of the felony charges under the doctrine of merger.
I
Defendant argues the trial court should have (1) permitted adefense psychologist to examine C.J. and/or (2) allowed a
voir dire
examination of C.J. in order to determine whether he possessed the
requisite intent necessary for the admissibility of his statements
under the medical treatment exception to the hearsay rule. We
disagree.
“Statements made for purposes of medical diagnosis or
treatment and describing . . . past or present symptoms, pain, or
sensations, or the inception or general character of the cause or
external source thereof” are admissible in court as an exception to
the hearsay rule. N.C.G.S. § 8C-1, Rule 803(4) (2001). “Rule
803(4) requires a two-part inquiry: (1) whether the declarant's
statements were made for purposes of medical diagnosis or
treatment; and (2) whether the declarant's statements were
reasonably pertinent to diagnosis or treatment.”
State v. Hinnant,
351 N.C. 277, 284, 523 S.E.2d 663, 667 (2000).
In
Hinnant, the only case Defendant cites as support for his
argument,
our Supreme Court “recognize[d] the difficulty of
determining whether a declarant[, especially a young child,]
understood the purpose of his or her statements.”
Id. at 287, 523
S.E.2d at 669. The Supreme Court held that the declarant's intent
could be determined by consideration of “all objective
circumstances of record surrounding [the] statements.”
(See footnote 1)
Id.
at
288, 523 S.E.2d at 670.
Thus,
neither a psychological examination
nor a
voir dire examination is necessary under
Hinnant for thedetermination of whether the declarant had the requisite intent to
qualify his statements under the medical treatment exception of
Rule 803(4).
(See footnote 2)
We further note Defendant did not request the trial court to
conduct a
voir dire examination of C.J.
See N.C.R. App. P.
10(b)(1) (in order to preserve a question for appellate review, the
appellant must have presented the trial court with a timely request
or motion). Moreover, while Defendant excepted to Dr. Turner's
testimony regarding C.J.'s statement to him, Defendant waived this
objection by permitting the three nurses to testify without
objection to C.J.'s identical statement.
See State v. Campbell,
296 N.C. 394, 399, 250 S.E.2d 228, 231 (1979) (“the admission of
evidence without objection waives prior or subsequent objection to
the admission of evidence of a similar character”). Accordingly,
Defendant's assignments of error as to this issue are overruled.
II
Defendant next contends the trial court erred in denying his
motion to dismiss because the evidence presented by the State was
insufficient to prove Defendant intentionally kicked C.J.
In ruling on a motion to dismiss, the trial court must
determine whether there is substantial evidence of each essential
element of the offense charged and that the defendant is theperpetrator of the offense.
State v. Harding, 110 N.C. App. 155,
162, 429 S.E.2d 416, 421 (1993). “Substantial evidence is such
relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.”
State v. Franklin, 327 N.C. 162, 171, 393
S.E.2d 781, 787 (1990). “If 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 and send the case to
the jury even though the evidence may also support reasonable
inferences of the defendant's innocence.”
State v. Smith, 40 N.C.
App. 72, 79, 252 S.E.2d 535, 540 (1979) (emphasis omitted).
One of the elements of felony child abuse the State must prove
in this case, is that the defendant “intentionally commit[ted] an
assault upon the child.”
N.C.G.S. § 14-318.4(a) (2001). Proof of
assault, which naturally is also an element of assault with a
deadly weapon inflicting serious injury, requires evidence of “'an
intentional attempt, by violence, to do injury to the person of
another.'”
State v. Britt, 270 N.C. 416, 419, 154 S.E.2d 519, 521
(1967) (citation omitted) (defining assault).
“An injury is inflicted intentionally when the
person who caused it intended to apply the
force by which it was caused. Intent is a
mental attitude seldom provable by direct
evidence. It must ordinarily be proved by
circumstances from which it may be inferred.
An intent to apply force to the body of
another may be inferred from [the act itself,]
[the nature of the injury,] [the conduct or
declarations of the person who applied it, or]
[other relevant circumstances].”
State v. Smith, 150 N.C. App. 138, 142-43, 564 S.E.2d 237, 240
(quoting N.C.P.I.--Crim. 206.35 (1998)),
disc. review denied, 355N.C. 756, 566 S.E.2d 87 (2002).
While the statement “my daddy kicked me,” standing alone, is
insufficient to prove intent, the expert testimony presented in
this case indicated C.J. had sustained an “extremely unusual,”
severe, and traumatic injury. Dr. Kreiter further testified C.J.'s
injury was consistent with having been kicked. As C.J.'s injury
was the result of a “high-energy” impact, equivalent to the force
sustainable in a “car wreck,” it is reasonable to infer the injury
was not accidental in nature but was the result of an intentional
kick. The trial court therefore properly denied Defendant's motion
to dismiss.
III
Finally, Defendant asserts the trial court erred in failing to
arrest one of the felony charges under the doctrine of merger. We
disagree.
The common law doctrine of merger is a
judicial tool to prevent the subsequent
prosecution of a defendant for a lesser[-]
included offense once he has been acquitted or
convicted of the greater. It is primarily a
device to prevent the defendant from being
placed twice in jeopardy for the same offense.
State v. Moore, 34 N.C. App. 141, 142, 237 S.E.2d 339, 340 (1977).
Where the offenses charged are based on “two distinct criminal
statutes which require proof of different elements . . . , the
punishment of each of these separate offenses by consecutive
sentences does not violate the constitutional prohibition against
double jeopardy.”
State v. Evans, 125 N.C. App. 301, 304, 480
S.E.2d 435, 436 (1997). In this case, each of the two offenseswith which Defendant was charged requires proof of elements not
included in the definition of the other offense. Thus, Defendant's
argument is without merit.
No error.
Judges WYNN and McGEE concur.
Footnote: 1