Defendant first contends that the trial court erred in denying
his motions to dismiss the charge of felony child abuse, in that
there was insufficient evidence upon which a reasonable jury could
have found him guilty of that charge. Specifically, defendant
argues that there was insufficient evidence that he intentionally
inflicted any serious physical injury upon the minor child. Wedisagree.
In ruling on a motion to dismiss for insufficiency of the
evidence, the trial court must consider “all the evidence . . . in
the light most favorable to the State, giving the State the benefit
of every reasonable inference and resolving any contradictions in
its favor.”
State v. Pierce, 346 N.C. 471, 491, 488 S.E.2d 576,
588 (1997) (citation omitted). Further, there must be substantial
evidence of every element of the crime charged, and substantial
evidence that the defendant was the perpetrator of that crime.
State v. Elliott, 344 N.C. 242, 475 S.E.2d 202 (1996),
cert.
denied, 520 U.S. 1106, 137 L. Ed. 2d 312 (1997). In addition, this
Court has held that:
When the motion [to dismiss] calls into
question the sufficiency of circumstantial
evidence, the question for the court is
whether a reasonable inference of defendant's
guilt may be drawn from the circumstances. If
so, it is for the jury to decide whether the
facts, taken singly or in combination, satisfy
them beyond a reasonable doubt that the
defendant is guilty.
State v. Mapp, 45 N.C. App. 574, 581, 264 S.E.2d 348, 353 (1980)
(quoting
State v. Cook, 273 N.C. 377, 383, 160 S.E.2d 49, 53
(1968)) (citation omitted).
Moreover, “'[c]ircumstantial evidence
may withstand a motion to dismiss and support a conviction even
when the evidence does not rule out every hypothesis of
innocence.'”
State v. Fritsch, 351 N.C. 373, 379, 526 S.E.2d 451,
455,
cert. denied, 531 U.S. 890, 148 L. Ed.2d 150 (2000) (quoting
State v. Stone, 323 N.C. 447, 452, 373 S.E.2d 430, 433 (1988)).
To establish felonious child abuse under N.C.G.S. § 14-318.4(1999), the State must produce evidence tending to show the
following: (1) that defendant is a parent, or other person
providing care or supervision to, (2) a child less than 16 years of
age, (3) who intentionally inflicts any serious physical injury
upon the child, (4) or who intentionally commits an assault upon
the child, which (5) results in any serious injury to the child.
N.C.G.S. § 14-318.4(a) (1999);
see also State v. Pierce, 346 N.C.
at 492-493, 488 S.E.2d at 588;
State v. Elliott, 344 N.C. at 278,
475 S.E.2d at 218-219.
In the case
sub judice, defendant challenges the sufficiency
of the evidence regarding elements three, four and five in that the
State failed to offer sufficient evidence that he intentionally
inflicted serious physical injury upon the minor child or that he
intentionally committed an assault upon the child which resulted in
serious injury.
The State presented the following testimony at trial: Mary Jo
Schumacher (Schumacher), a social worker with DSS, testified that
during an interview with defendant, he admitted to spanking the
child on the bottom the night before the bruises were discovered.
Further, Schumacher testified that, although defendant denied at
trial that he ever hit the child, he later admitted that he had
popped him on the hand several times before.
In addition, Dr. Cindy Brown, a certified child medical
examiner and an expert in the field of forensic pediatrics,
testified to the following: that there were “multiple linear
bruises on [the child's] buttocks and right thigh that were linealand formed the impression that suggested a hand print” and that the
colors were blue, red and purple”; that if [the type of] bruising
[described] did occur by accident, it would result in a single
bruise in the area of impact, not multiple bruises that form a
pattern similar to those observed on the child; that having seen
other children with linear bruises similar to those observed on the
minor child, she stated that they were caused by a spanking from
the hand, belt, cord, electrical cord, rope, or switch; that these
injuries are not consistent with an accidental injury; that even
given the number of times children fall during their toddler years,
it is still exceedingly rare to see a bruise on the buttocks.
Further, on cross examination, Dr. Brown testified to the
following:
Q. So there's variability as to what kind of
force could have caused the bruise; correct?
A. No. I believe it would require great force.
Many children who have been spanked don't have
bruises from spanking. They have a red mark
that goes away; not enough force to break the
blood vessels under the skin.
Q. So in order to break the blood vessels
under the skin, you're saying there has to be
some force directly against that particular
location?
A. It has to be sufficient force to deform the
tissue and break the blood vessels, yes.
Q. And it has to touch the tissue at that
particular location and break the blood
vessel, doesn't it?
A. Yes.
Q. And if a child fell and fell on the ground
and hit his buttocks on something hard, it
could break the tissue and form a bruise,couldn't it?
A. It would be unusual, but yes, it's
possible.
Q. And the reason you asked the child to pull
up is because if the child fell from a
standing position he could break the skin and
form a bruise?
A. From the height of a child that age, it
would be just exceedingly rare to ever see a
bruise from a fall.
Q. But it's possible, isn't it?
A. I have not seen it.
This Court has held that “if a child suffers injuries that are
neither accidental nor self-inflicted during a period of time in
which the child is in the exclusive custody of an adult, the finder
of fact can draw an inference that the adult inflicted the injury.”
State v. Qualls, 130 N.C. App. 1, 502 S.E.2d 31 (1998). Here, Dr.
Brown testified that the injury occurred within forty-eight hours
prior to 9 September 1999, during which time the child was in the
exclusive custody of defendant.
Additionally, this Court has held that past instances of
mistreatment are admissible to prove intent.
State v. Krider, 138
N.C. App. 37, 530 S.E.2d 569 (2000). Here, Cindy testified that
she observed defendant hit the child on the hand or leg to
discipline him, and that she had previously observed red marks on
the child where defendant hit him. We conclude that there is
sufficient evidence from which a jury could infer that defendant
intentionally inflicted injury upon the minor child, or that he
intentionally committed an assault upon the child which resulted ininjury.
Moreover, we disagree with defendant's contention that the
injuries inflicted upon the child did not satisfy the statutory
requirement that such injuries be serious. Our Supreme Court has
held that a serious physical injury is such physical injury as
causes great pain and suffering.
State v. Phillips, 328 N.C. 1,
399 S.E.2d 293,
cert. denied, 501 U.S. 1208, 115 L. Ed.2d 977
(1991). When questioned about whether the injury she observed on
the child caused him great pain and suffering, Dr. Brown testified
that “the force required to produce bruises such as these on the
buttocks would be extreme and painful.” We conclude that there is
sufficient evidence in the record on each element of the offense of
felony child abuse to deny defendant's motion to dismiss, and to
submit this charge to the jury.
Finally, we reject defendant's argument that there was
insufficient evidence of misdemeanor child abuse, and therefore, it
was error for the trial court to charge on that offense. In the
present case, the trial court, in addition to submitting the charge
of felonious child abuse to the jury, also instructed on non-
felonious child abuse. It is well settled that “when a defendant
is indicted for a criminal offense, he may be convicted of the
charged offense or a lesser included offense [only] when the
greater offense which is charged in the bill of indictment contains
all of the essential elements of the lesser.”
State v. Wilson, 128
N.C. App. 688, 692, 497 S.E.2d 416, 419-20 (1998). Where there is
evidence of a defendant's guilt of a lesser-included offense, thatdefendant is entitled to have the question submitted to the jury,
even if there is no request for the instruction.
State v. Summitt,
301 N.C. 591, 273 S.E.2d 425,
cert. denied, 451 U.S. 970, 68 L.
Ed. 2d 349 (1981). We conclude that the trial court did not err by
instructing the jury on the lesser-included offense of misdemeanor
child abuse, even though the jury ultimately found defendant guilty
of the greater offense.
Accordingly, we overrule defendant's assignments of error, and
hold that the trial court committed no error.
No error.
Judges WALKER and MCGEE concur.
Report per Rule 30(e).
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