STATE OF NORTH CAROLINA
v
.
DONALD DEE LOWE
Attorney General Roy Cooper, by Assistant Attorney General
Anne Goco Kirby, for the State.
John T. Hall, for defendant-appellant.
CAMPBELL, Judge.
On 6 March 2001, Donald Lowe (“defendant”) was charged with
felonious child abuse of his son, Joshua Lowe (“Joshua”), assault
with a deadly weapon inflicting serious injury on James Hendricks
and assault with a deadly weapon inflicting serious injury on
Nannie Hendricks.
On 6 April 2001, defendant was indicted on these offenses and
additionally charged with assault on a female and assault on a law
enforcement officer. On 25 September 2001 these cases were tried
before Chatham County Superior Court Criminal Session and the jury
found defendant guilty on all charges. Defendant then appeared 3
December 2001 before Judge Gregory Weeks for correction of his
sentence. On appeal, defendant assigns error to the following
actions of the trial court: I. Sentencing defendant at a priorconviction level II; II. Overruling defendant's objection to
admission of Joshua's out-of-court statement as an “excited
utterance;” and III. Denying defendant's motion to dismiss the
allegations of inflicting serious injury in the assault charges in
01 CRS 1061, 1062 and 1064 due to the insufficiency of the
evidence. By appealing, defendant seeks dismissal of the charges
due to the insufficiency of the evidence, or alternatively, a new
trial due to improperly admitted evidence or a new sentencing
hearing. We hold that the evidence was sufficient to convict
defendant on the charges against him and that all the evidence was
properly admitted. We find no error in the trial court's rulings
and therefore, we affirm.
The State's evidence showed that in the early morning of 6
March 2001, defendant began hitting, choking and kicking Melinda
Phillips (“Melinda”), the mother of defendant's children. While
defendant had Melinda down on the floor choking her, their three
children entered the room and started hitting defendant to get him
off of their mother. Joshua, nine years old at the time, hit
defendant on his back with a pool stick, causing the stick to
break. Melinda ran out of the house and told the children to run.
Cassie, eight years old, ran across the street to James and Nannie
Hendricks' home. The Hendricks woke up when they heard Cassie
enter and say, “Please help me. My daddy is beating my momma.”
Then defendant entered the Hendricks' home wielding the broken pool
stick and threatened to kill them all. He hit James Hendricks in
the head with the stick and Nannie in the nose with it and then hehit his son Joshua, who was standing in the doorway, in the head,
causing a large laceration. Defendant later picked Joshua up and
carried him to his grandmother's house and Joshua's uncle took him
to the hospital.
As defendant's foremost request is that we dismiss his
convictions, we apply the standard of review for a motion to
dismiss. As recently stated by this Court:
When ruling on a defendant's motion to dismiss
a criminal action, “'the trial court is to
determine whether there is substantial
evidence (a) of each essential element of the
offense charged, or of a lesser offense
included therein, and (b) of defendant's being
the perpetrator of the offense. If so, the
motion to dismiss is properly denied.'” State
v. Earnhardt, 307 N.C. 62, 65-66, 296 S.E.2d
649, 651-52 (1982) (citation omitted).
Whether the evidence presented is substantial
is a question of law for the court. (citation
omitted). Substantial evidence is “'such
relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.'”
State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d
164, 169 (1980). “'If the evidence is
sufficient only to raise a suspicion or
conjecture as to either the commission of the
offense or the identity of the defendant as
the perpetrator of it, the motion to dismiss
should be allowed.'” Earnhardt, 307 N.C. at
66, 296 S.E.2d at 652 (citation omitted).
State v. Siriguanico, ___ N.C. App. ___, 564 S.E.2d 301 (2002).
I. Prior record level II
Defendant first assigns error to the trial court's sentencing
him at a prior conviction level II. At the sentencing hearing, the
State submitted a prior criminal record to the court and proposed
that defendant be considered a level II for sentencing purposes.
Thereupon, defendant's trial counsel told the court, “[M]y clientdoes raise some issue with respect to the Rowan County matter. He
just doesn't seem to recall that situation.” Defendant's counsel,
however, did not object to defendant having a prior record level II
status. Defendant argues that an objection concerning the evidence
of his prior criminal record demands a certified copy before the
sentencing court may properly consider it. We disagree. Prior
convictions can be proven by: “(1) Stipulation of the parties. (2)
An original or copy of the court record of the prior conviction.
(3) A copy of records maintained by the Division of Criminal
Information, the Division of Motor Vehicles, or of the
Administrative Office of the Courts. (4) Any other method found by
the court to be reliable.” N.C. Gen. Stat. § 15A-1340.14(f)(1)-(4)
(2001). The trial transcript shows that the State submitted to the
court a prior criminal record and that the court considered the
record to be reliable. In State v. Rich, the defendant argued that
the trial court erred “by accepting the State's offer of 'an
unverified computerized printout not under seal' to prove
defendant's prior criminal convictions.” State v. Rich, 130 N.C.
App. 113, 115, 502 S.E.2d 49, 51 (1998). This Court held that
“[t]he computerized record contained sufficient identifying
information with respect to defendant to give it the indicia of
reliability.” Id. at 116, 502 S.E.2d at 51. As was the case in
Rich, the defendant here submitted no authority for his contention
that the State must produce a certified copy of the prior
conviction if defendant objects to the evidence used to establish
his prior criminal record. The statute is clear that the court mayuse “[a]ny . . . method found by the court to be reliable.” N.C.
Gen. Stat. § 15A-1340.14(f)(4) (2001). Therefore, we defer to the
trial court's finding that the criminal record submitted by the
State contained sufficient evidence “to give it the indicia of
reliability.” Rich at 116, 502 S.E.2d at 51.
Under the Structured Sentencing provisions of the Criminal
Procedure Act, the prior record level for felony sentencing is to
be determined by N.C. Gen. Stat. § 15A-1340.14, which provides that
a felony offender's prior record level is determined by calculating
the sum of the offender's prior conviction points. The offender
receives one point for each prior misdemeanor that falls under the
statute and the offender's level is determined by his total number
of points. For a prior record “Level II,” the offender must have
“[a]t least 1, but not more than 4 points.” N.C. Gen. Stat. § 15A-
1340.14(c)(2) (2001). Defendant had a total of three prior points
and therefore, even without the “Rowan County matter,” which was a
conviction for driving under the influence of drugs, defendant
would have still had two points. Thus, it would have been harmless
error to include a point for the offense that defendant “just
doesn't seem to recall,” since only one point is needed to be a
level II. See State v. Smith, 139 N.C. App. 209, 533 S.E.2d 518
(2000), appeal dismissed, 353 N.C. 277, 546 S.E.2d 391 (2000).
II. Admission of Joshua's out-of-court statement Defendant next assigns error to the trial court's overruling
defendant's objection to the admission of Joshua's hearsay
statement as an “excited utterance” through the testimony of
Detective Perry, who interviewed Joshua at the hospital. Hearsay
is “a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove
the truth of the matter asserted.” N.C. Gen. Stat. § 8C-1, Rule
801(c) (2001). Under Rule 803(2) of the North Carolina Rules of
Evidence, hearsay that fits the requirements of an excited
utterance is admissible as an exception to the general rule against
hearsay. For a statement to fall within the excited utterance
exception, there must be: “'(1) a sufficiently startling
experience suspending reflective thought and (2) a spontaneous
reaction, not one resulting from reflection or fabrication.'”
State v. Wright, ___ N.C. App. ___, ___, 566 S.E.2d 151, 154 (2002)
(quoting State v. Maness, 321 N.C. 454, 459, 364 S.E.2d 349, 351
(1988) (citation omitted)). Further, our Supreme Court has been
more lenient with respect to the passage of time between the two
essential elements of an excited utterance in cases involving
statements made by children. By doing so, it has recognized that
“the stress and spontaneity upon which the [excited utterance]
exception [to the hearsay rule] is based is often present for
longer periods of time in young children than in adults.” State v.
Smith, 315 N.C. 76, 87, 337 S.E.2d 833, 841 (1985) (emphasis
added). The statement, therefore, does not have to be
contemporaneous with the startling event, but, as the Smith Courtheld, “[s]pontaneity and stress are the crucial factors.” Smith at
88, 337 S.E.2d 842.
In the case sub judice, the statement in dispute is the one
made by Joshua to Detective Perry at the hospital after the
incident in which defendant hit Joshua with a pool stick. Joshua
did not testify at trial. Detective Perry testified that Joshua
told him “that his dad and mom . . . were fighting, and when he
went in that [his dad] was hitting his mom. . . . [And] when his
dad entered Nannie's residence, . . . he hit James and Nannie with
the pool stick and then turned and hit [Joshua] with the pool
stick.” Prior to this testimony being allowed, defense counsel
objected, upon which a bench conference was held off the record,
and the jury was excused temporarily. During the proceedings
outside the jury's presence, the court decided that this case falls
within the excited utterance exception under State v. Thomas, in
which this Court held that the trial court properly admitted, as an
excited utterance, hearsay testimony regarding a five-year-old
victim's conversation with her classmates four to five days after
the incident in which she was sexually abused by her father. The
trial court in that case:
[S]pecifically found that A.'s statement to L.
and B. was a spontaneous response to their
questions, made while A. was under “obvious
distress” precipitated by events which
occurred “within a four to five day period at
most.” Reasoning that a child of five “is
characteristic[ally] free of conscious
fabrication for longer periods [of time]
including . . . four or five days, the court
concluded that A.'s assertions to L. and B.
fell within the excited utterance exception to
the hearsay rule.”
State v. Thomas, 119 N.C. App. 708, 712, 460 S.E.2d 349, 352
(1995). Upon reviewing the trial court's findings, this Court
held:
[T]he victim's conversation with L. and B. on
the playground was of such a nature as to have
been properly admitted under the excited
utterance exception to the hearsay rule.
Although the precise date of the alleged
assault is unclear from the record, A. told
her friends on the Wednesday after
Thanksgiving that it occurred sometime during
the previous weekend. As the trial court
found, therefore, A.'s statement on the
playground came “within a four to five day
period at most” of the incident of which she
spoke. In the circumstances of this case, we
do not believe the passage of four or five
days detracts from the “spontaneity” of A.'s
response.
Id. at 713, 460 S.E.2d at 353. In the case before us, Joshua's
statement to Detective Perry occurred several hours after the
incident in which defendant was fighting with Joshua's mother,
assaulted the Hendricks and hit Joshua with a pool stick. As our
extensive case law on this issue supports the proposition that
children may spontaneously react to startling experiences well
after the events took place, we hold that the trial court was
correct in finding that Joshua's statement to Detective Perry falls
within the excited utterance exception. Further, our case law is
clear that statements made in response to a posed question do not
necessarily lack spontaneity. See State v. Murphy, 321 N.C. 72,
77, 361 S.E.2d 745, 748 (1987). Therefore, the fact that Joshua's
statement was prompted by Detective Perry asking him what had
happened, does not infer that Joshua may have made a statement as
a result of “reflection or fabrication.” Smith at 86, 337 S.E.2dat 841. As the State argued and the trial court held, Joshua “was
still in an excited state when he got to the UNC ER. . . . [And] he
[was] still suffering from the traumatic events of the morning and
the passage of a couple of hours would not detract from the
spontaneity of the statements he gave to Officer Perry when
interviewed.”
Additionally, defendant argues that the cases used to support
the latitude given the time factor in cases where spontaneous
statements were uttered by children are distinguishable from this
case because Joshua did not witness a death or experience a sexual
trauma. We find that this argument has no merit, as witnessing
one's father cause serious physical injury to one's mother, friends
and oneself is certainly a sufficiently traumatic experience for a
child, to support this same latitude being given to the time span
between the incident and the utterance.
Moreover, Deputy Perry's testimony as to Joshua's statement
was admissible as an exception to the rule against hearsay.
Defendant argues that since the State did not call Joshua to
testify, he became an unavailable witness; thus, pursuant to Rule
804(b)(5), the trial court must make findings that Joshua was
unavailable as a witness. Upon doing so, the court, defendant
argues, must follow the six steps set out in Smith to determine if
hearsay testimony is admissible under the “residual” exception to
the hearsay rule in Rule 803(24). On the contrary, we find that
the trial court did not err in not making findings that Joshua was
unavailable because Joshua's hearsay statement falls within theexcited utterance exception. When hearsay evidence comes within a
firmly rooted hearsay exception, unlike the “residual” or
“catchall” exception of 803(24), “the Confrontation Clause of the
North Carolina Constitution is not violated, even though no
particularized showing is made as to the necessity for using such
hearsay or as to its reliability or trustworthiness.” State v.
Jackson, 348 N.C. 644, 654, 503 S.E.2d 101, 107 (1998). Reversing
this Court's initial holding in Jackson, our state Supreme Court
held upon review of the case that the availability of a hearsay
declarant does not preclude the admission of hearsay evidence under
the “state of mind” exception in Rule 803(3). In State v.
Washington, this Court applied the Jackson holding to affirm the
admission of hearsay evidence under the excited utterance
exception, which is at issue in the case before us. State v.
Washington, 131 N.C. App. 156, 161-62, 506 S.E.2d 283, 287-88
(1988), cert. denied, 352 N.C. 362, 544 S.E.2d 562 (2000). Thus,
the trial court did not err by admitting the hearsay evidence as an
excited utterance under Rule 803(2) without any showing that Joshua
was unavailable and without making any findings required under the
residual exception.
III. Assault with a deadly weapon inflicting “serious injury”
Finally, defendant argues that the trial court erred in
denying his motion to dismiss the charges of assault with a deadly
weapon inflicting serious injury due to insufficient evidence.
Defendant was convicted of the charges in 01 CRS 1061 of felonious
child abuse inflicting serious injury under N.C. Gen. Stat. § 14-318.4 and in 01 CRS 1062 and 1064 of assault with a deadly weapon
inflicting serious injury under N.C. Gen. Stat. § 14-32(b).
Defendant argues that under N.C. Gen. Stat. § 14-32.4, there is
insufficient evidence to find him guilty of “serious bodily
injury,” as defined by that statute. Defendant, however, was not
convicted under that statute and his argument is without merit.
Prior to defining “serious bodily injury,” § 14-32.4 states,
“Unless the conduct is covered under some other provision of law
providing greater punishment, any person who assaults another
person and inflicts serious bodily injury is guilty of a Class F
felony.” N.C. Gen. Stat. § 14-32.4 (2001). Because defendant's
conduct was covered under statutes providing that he is guilty of
a Class E felony, a greater punishment than Class F, the definition
of “serious bodily injury” in § 14-32.4 does not apply.
First, under § 14-32(b), the elements of assault with a deadly
weapon inflicting serious injury are: an assault, with a deadly
weapon, inflicting serious injury, and not resulting in death.
State v. Uvalle, __ N.C. App. __, 565 S.E.2d 727 (2002) (emphasis
added) (citation omitted). Secondly, to prove felony child abuse
under N.C. Gen. Stat. § 14-318.4, the State must show that “[a]
parent or any other person providing care to or supervision of a
child less than 16 years of age . . . intentionally inflict[ed] any
serious physical injury upon or to the child or . . .
intentionally commit[ted] an assault upon the child which
result[ed] in any serious physical injury to the child[.]” N.C.
Gen. Stat. § 14-318.4(a) (2001) (emphasis added). By our recent holding that “assault inflicting serious bodily
injury [under G.S. § 14-32.4]. . . is not a lesser-included offense
of assault with a deadly weapon with intent to kill and inflict
serious injury [under G.S. § 14-32(a)]” this Court has recognized
that the definition of “serious bodily injury” in G.S. § 14-32.4
does not apply to the term “serious injury” under G.S. § 14-32(a)
or (b). State v. Hannah, 149 N.C. App. 713, 716, 563 S.E.2d 1, 3
(2002), review denied, 355 N.C. 754, 566 S.E.2d 81 (2002).
Furthermore, the Hannah Court stated, “Our Courts have declined to
define “serious injury” for purposes of assault prosecutions, other
than stating that “'[t]he injury must be serious but it must fall
short of causing death' and that '[f]urther definition seems
neither wise nor desirable.'” Hannah at 718, 563 S.E.2d at 4
(quoting State v. Ramseur, 338 N.C. 502, 507, 450 S.E.2d 467, 471
(1994)). By enacting a statute in 1997 to cover “assault
inflicting serious bodily injury,” the legislature clearly intended
to create a separate offense which has been found to require “proof
of more severe injury than the element of 'serious injury[.]'”
Hannah at 719, 563 S.E.2d at 5; see also N.C.G.S. § 14-32.4 (2001).
We agree with the Hannah Court that upon “review of the relevant
statutes and case law, we conclude that “serious bodily injury”
requires proof of more severe injury than the “serious injury”
element of the indicted offense.” Hannah at 717, 563 S.E.2d at 4
(citation omitted).
In addition, the definition of “serious bodily injury” in G.S.
§ 14-32.4 does not apply to “serious physical injury” in G.S. § 14-318.4(a), under which defendant was found guilty of felonious child
abuse, a Class E felony. In fact, G.S. § 14-318.4(a3) provides a
separate offense of felonious child abuse if a parent, care
provider or supervisor “intentionally inflicts any serious bodily
injury to the child or who intentionally commits an assault upon
the child which results in any serious bodily injury to the child.”
N.C. Gen. Stat. § 14-318.4(a3) (2001) (emphasis added). The
statute goes on to define “serious bodily injury” and holds that
violation of this statute is a Class C felony. Moreover, the
definition of “serious bodily injury” in this statute mirrors the
definition of the same in G.S. § 14-32.4. Clearly, the legislature
has intended the definition of “serious physical injury” and
“serious bodily injury” in this statute to possess distinctly
different meanings.
At any rate, the evidence was sufficient to find defendant
guilty of “serious physical injury” to Joshua as charged in 01 CRS
1061 and of “serious injury” to James Hendricks and Nannie
Hendricks as charged in 01 CRS 1062 and 1064, respectively.
Without detailing the injuries to each, the injuries suffered by
all the victims clearly fall within the realm of injuries
contemplated by the applicable statutes.
Accordingly, we find no error in the trial court's holdings.
No error.
Judges WALKER and McCULLOUGH concur.
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