STATE OF NORTH CAROLINA
v. Mecklenburg County
No. 00 CRS 51061
JONATHAN DAVID DUNN
Attorney General Roy Cooper, by Assistant Attorney General
Kathleen U. Baldwin, for the State.
Stowers & James, P.A., by Paul M. James, III, for defendant-
appellant.
WALKER, Judge.
Defendant pled guilty to felony child abuse in violation of
N.C. Gen. Stat. § 14-318.4. After examining defendant under oath
pursuant to N.C. Gen. Stat. § 15A-1022 regarding the voluntariness
of his plea, the court accepted defendant's guilty plea. Defendant
stipulated to the factual basis for the plea. The State's evidence
disclosed that, in late October of 2000, Michelle Smith's thirteen-
month-old boy, the victim, had been ill with a fever due to an ear
infection. On 1 November 2000, Smith left the victim in the care
of defendant, her boyfriend. While in the care of defendant, the
boy would cry and “wouldn't be still.” Defendant “lost it” and
“put [his] hand across [the victim's] face, basically covering hisface, and . . . slammed his head up and down forcibly into the
mattress with [his] right hand, maybe ten to fifteen times.” The
victim vomited several times throughout the day and had trouble
breathing. When emergency personnel were summoned, the victim was
unconscious. At the hospital, the victim was diagnosed with
subdural hematomas and suffered from lack of oxygen to his brain.
The victim is now severely developmentally delayed, wears braces on
his limbs to prevent him from having muscle contractions, has a
feeding tube, and is blind.
Before sentencing, the trial court found two aggravating
factors: (1) the victim was very young; and (2) the victim suffered
serious injury that is permanent and debilitating. The trial court
also found four mitigating factors: (1) defendant voluntarily
acknowledged wrongdoing at an early stage of the criminal process;
(2) defendant has accepted responsibility for his criminal conduct;
(3) defendant has a support system in the community; and (4)
defendant has a positive employment history or is gainfully
employed. The trial court determined the aggravating factors
outweighed the mitigating factors and sentenced defendant to
twenty-eight to forty-three months in prison. Defendant appeals.
Defendant first contends the trial court erred by using
evidence necessary to prove an element of the offense to also prove
the aggravating factor that the victim suffered a serious injury
which was permanent and debilitating in violation of N.C. Gen.
Stat. § 15A-1340.16. Defendant acknowledges that case law is “not
supportive of [his] position.” N.C. Gen. Stat. § 15A-1340.16(d) provides that “[e]vidence
necessary to prove an element of the offense shall not be used to
prove any factor in aggravation . . . .” N.C. Gen. Stat. § 15A-
1340.16(d)(2001). Our legislature has defined serious bodily
injury "as bodily injury that creates a substantial risk of death,
or that causes serious permanent disfigurement, coma, a permanent
or protracted condition that causes extreme pain, or permanent or
protracted loss or impairment of the function of any bodily member
or organ, or that results in prolonged hospitalization." See N.C.
Gen. Stat. § 14-32.4.
Our Supreme Court has held that long-term effects which arise
from the victim's injuries may be properly used as an aggravating
factor. See State v. Brinson, 337 N.C. 764, 770, 448 S.E.2d 822,
826 (1994)(“evidence relating to the victim's broken neck, aside
from evidence relating to the resulting paralysis, was sufficient
to establish the element of the crime that the defendant inflicted
a 'serious injury' upon the victim”). Relying on Brinson, this
Court has held that gunshot wounds suffered by victims resulted in
serious injuries at the time they were inflicted, and that these
injuries were separate and apart from their consequences. State v.
Crisp, 126 N.C. App. 30, 39, 483 S.E.2d 462, 468, disc. rev.
denied, 346 N.C. 284, 487 S.E.2d 559 (1997). Most recently, in
State v. Wampler, 145 N.C. App. 127, 549 S.E.2d 563 (2001), this
Court held that the broken wrist, chewed fingers, and gash in the
victim's head established the “serious injury” element of the
crime. However, this Court also held that the permanentdisfigurement of fingers, surgery and implantation of a steel plate
and five screws in his arm, and the loss of use and physical
impairment to victim's fingers, hand, and arm were aggravating
factors for sentencing purposes. Id. at 133, 549 S.E.2d 568.
Like Brinson, Crisp and Wampler, the victim's injuries here
went beyond the “serious injury” necessary to convict defendant of
the offense. After suffering subdural hematomas, the victim is
blind, has braces for his legs and arms, and is developmentally
delayed. Accordingly, the trial court properly found as an
aggravating factor that the victim suffered serious injury which is
permanent and debilitating.
Defendant next argues the trial court erred in finding that
the victim was very young. He asserts that, because the age of the
victim is an element of the offense of felonious child abuse, the
trial judge should not have considered the age of the victim as an
aggravating factor. Defendant, nevertheless, concedes that
“decisions of this Court and the North Carolina Supreme Court do
not support this position but [he] contends that these cases are
wrongly decided.” See State v. Ahearn, 307 N.C. 584, 603, 300
S.E.2d 689, 701 (1983)(the fact that two-year-old victim was very
young was not an element necessary to prove felonious child abuse
and was therefore properly considered as an aggravating sentencing
factor); see also State v. Burgess, 134 N.C. App. 632, 637, 518
S.E.2d 209, 213 (1999)(the fact that victim was of a very young age
was not an element necessary to prove felonious child abuse and,
therefore, was properly considered by trial court as an aggravatingfactor in prosecution for felony child abuse and second-degree
murder).
“[A] panel of the Court of Appeals is bound by a prior
decision of another panel of the same court addressing the same
question, but in a different case, unless overturned by an
intervening decision from a higher court.” In the Matter of Appeal
from Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989).
Accordingly, we hold the trial court properly found the aggravating
factor that the victim was very young.
Defendant also assigns error to the trial court's
determination that the aggravating factors outweighed the
mitigating factors. Defendant, however, has not cited any
authority or presented this Court with any argument. “Questions
raised by assignments of error but not presented and discussed in
a party's brief are deemed abandoned.” State v. Wilson, 289 N.C.
531, 535, 223 S.E.2d 311, 313 (1976); see N.C.R. App. P. 28(b)(6).
Accordingly, this assignment of error is deemed abandoned.
Affirmed.
Judges THOMAS and BIGGS concur.
Report per Rule 30(e).
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