An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-545


Filed: 21 January 2003


         v.                        Durham County
                                No. 00 CRS 63440

    Appeal by defendant from judgments entered 5 July 2001 by Judge Anthony M. Brannon in Durham County Superior Court. Heard in the Court of Appeals 23 December 2002.

    Attorney General Roy Cooper, by Special Deputy Attorney General Mabel Y. Bullock, for the State.

    Mary March Exum, for defendant-appellant.

    HUDSON, Judge.

    On 30 October 2000, the Durham County grand jury indicted defendant on charges of assault with a deadly weapon with intent to kill inflicting serious injury and with felony child abuse-serious injury. At trial beginning on 2 July 2001, the State introduced evidence tending to show the following:
    On 27 August 2000, the maternal grandmother of three-month-old Dominique Waddell (victim) cared for him from approximately noon until 7:00 p.m. She described the victim as a normal healthy baby. Tameka Jones, the victim's mother, took him home at that time. Ms. Jones noticed nothing out of the ordinary and indicated the victim ate and slept normally that evening. When she left for workbetween 6:30 and 6:45 a.m. the next morning, the victim was in bed with Edward M. Waddell (defendant). Ms. Jones did not notice anything out of the ordinary.
    Ms. Jones called defendant at 10:15 a.m. and asked how the victim was doing. She also asked to speak to the victim. Defendant said the victim was fine, but could not talk to her because he could not locate the cordless telephone. About thirty or forty-five minutes later, Ms. Jones received a voice mail from defendant. She said defendant “sounded like something was wrong,” and he stated the victim had fallen and busted his lip. Ms. Jones immediately called defendant, who said that he had stopped the victim's lip from bleeding and that she did not need to come home. Ms. Jones immediately told her supervisor that she needed to leave because of an emergency at home.
    Ms. Jones arrived at home about fifteen or twenty minutes later. She saw defendant in the kitchen, but continued on to the bedroom where the victim was lying on a pillow. Ms. Jones noticed the victim “was cold as ice, and he looked strange.” When she picked him up, he started making a moaning noise. She began crying and tried to call 911. Ms. Jones said defendant, whom she described as acting hysterical, was trying to take the telephone out of her hand because she was acting too hysterical. EMS workers arrived about ten minutes later at 12:11 p.m. and transported the victim to the emergency room.
    Dr. Karen Sue St. Claire testified that the victim had suffered a very severe head injury. Areas of his brain were dying,and the damage extended from both frontal lobes to the cerebrum. He had a skull fracture on the left side of the skull and a small area of very recent bleeding in the back of his head between his brain and skull. The victim also had extensive retinal hemorrhaging in both eyes. Dr. St. Claire testified the injuries were consistent with very violent shaking of the victim with extreme rotational forces with his head for ten to twenty seconds. Given “the constellation of findings that this child had,” Dr. St. Claire stated she was unable to come up with a diagnosis other than Shaken Impact Syndrome. She opined that the victim was not injured the preceding evening because he could not have survived the injury if he had not received medical treatment within a couple of hours. Dr. St. Claire said the victim would have “become symptomatic probably within minutes or very shortly within half an hour to an hour” after being injured. She stated the victim now had severe cerebral palsy and would be severely mentally and developmentally delayed. Children with similar head injuries live at most to their late teens or early twenties.
    Ms. Jones related that she and defendant “were having problems even before the baby was born . . . .” Two days before the victim was hospitalized, Ms. Jones had told defendant that one of them was going to have to move out of the apartment. When asked if defendant had ever said anything about how she treated the victim, she stated defendant had said she treated the victim “like he was a god.” The maternal grandmother testified she heard defendant say “I did it” while at Duke Medical Center on 29 August 2000 and atDr. St. Claire's office on 30 August 2000, and Ms. Jones heard defendant make the same comment on 30 August 2000. Both witnesses described defendant as crying at the time they heard him make the statements. Defendant made a motion to dismiss the charges at the close of the State's evidence, which the trial court denied.
    Defendant testified the victim usually awakened around 8:00 a.m., but did not awaken until around 10:00 a.m. on 28 August 2000. After trying to feed the victim, defendant began to give him a bath. The victim arched out of defendant's hands after water and soap ran into his face and hit his mouth on the edge of the plastic bathtub. He called Ms. Jones at work and told her that something was wrong with the victim and that the victim had hit his lip on the tub. When she asked if she needed to come home, defendant said “If your job will let you come home, then come home.” Defendant told Ms. Jones that the victim was “doing fine right now,” and the victim was asleep when Ms. Jones arrived. It was only after she picked the victim up that they started noticing the change.
    Defendant indicated he was the only person in the apartment with the victim that morning. He denied hitting the victim in the face and denied ever shaking the victim. Defendant further denied making the “I did it” comment. He suggested a baby sitter could have caused the victim's injuries, and he mentioned that the victim had fallen off of a bed onto a carpeted floor on 20 August 2000. Defendant renewed his earlier motion to dismiss, and the trial court again denied the motion.
    The jury subsequently found defendant to be guilty of thelesser included offense of assault with a deadly weapon inflicting serious injury and of felonious child abuse resulting in serious injury. During the sentencing hearing, defendant addressed the trial court and denied harming the victim. After finding factors in aggravation and mitigation, the trial court commented in open court that “defendant's account of how his child got injured in his custody was simply not only not believable, it was unbelievable.” The trial court then concluded that the factors in aggravation outweighed the factors in mitigation and imposed consecutive sentences of 36 to 53 months imprisonment. From the trial court's judgments, defendant appeals.
    Defendant first contends the trial court erred by denying the motion to dismiss the charges which he made at the close of the State's evidence. He argues the State failed to produce substantial evidence of every element of the crimes and that he was the perpetrator. This argument is without merit.
    By introducing evidence after the State rested its case, defendant's “motion for dismissal . . . made at the close of State's evidence is waived. Such a waiver precludes the defendant from urging the denial of such motion as a ground for appeal.” N.C.R. App. P. 10(b)(3). Because defendant again moved unsuccessfully for dismissal of the charges at the close of all the evidence, however, we will address this issue.
    While defendant speculates in his brief as to how the victim's injuries might have occurred and as to other possible perpetrators, evidence is sufficient to withstand a motion to dismiss when itgives “rise to a reasonable inference of defendant's guilt based on the circumstances.” State v. Styles, 93 N.C. App. 596, 603, 379 S.E.2d 255, 260 (1989). Once sufficient evidence is adduced at trial, it becomes a question for the jury. Id. “This test applies when the evidence is circumstantial, direct, or both.” Id.
    The victim's mother and grandmother both testified that the victim was behaving normally on 27 August 2000. Defendant was alone with the victim on 28 August 2000 from approximately 6:45 a.m. until noon. Between 10:45 and 11:00 that morning, defendant left a voice message for Ms. Jones that the victim had fallen and busted his lip. She called 911 after observing the victim's condition upon her arrival at the apartment. EMS personnel arrived ten minutes later and transported the victim to the emergency room. Dr. St. Claire testified the victim had suffered a very severe head injury which was consistent with very violent shaking with extreme rotational forces with the victim's head for ten to twenty seconds. She opined that the victim would have “become symptomatic probably within minutes or very shortly within half an hour to an hour” after being injured. This evidence, when viewed in the light most favorable to the State, was sufficient to withstand defendant's motion to dismiss. This assignment of error is overruled.
    Defendant next contends the trial court did not properly balance the factors in aggravation and mitigation and erred by sentencing him at the top of the aggravated range of punishment. He argues “[t]he trial court seems to have based his decision to order a heavy sentence on having interpreted defendant's testimonyas an excuse or explanation for how [the victim] was so severely injured” and “is punishing defendant for exercising his constitutional right to defend himself of criminal charges.” We disagree.
    Defendant does not challenge the trial court's actual findings as to the factors in aggravation and mitigation, but rather its weighing of those factors. However, the trial court's weighing of those factors is discretionary. See State v. Wampler, 145 N.C. App. 127, 133, 549 S.E.2d 563, 568 (2001). “The balance struck by the sentencing judge in weighing the factors will not be disturbed by an appellate court unless it is 'manifestly unsupported by reason,' or 'so arbitrary that it could not have been the result of a reasoned decision.'” State v. Hill, 105 N.C. App. 489, 498, 414 S.E.2d 73, 79 (1992) (citations omitted). From the record before this Court, we find no abuse of discretion by the trial court in sentencing defendant. Accordingly, we find no error.
    No error.
    Chief Judge EAGLES and Judge MCCULLOUGH concur.
    Report per Rule 30(e).

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