NO. COA02-1082

NORTH CAROLINA COURT OF APPEALS

Filed: 05 August 2003

    Appeal by defendant from judgments entered 28 September 2001 by Judge Steve Balog in Person County Superior Court. Heard in the Court of Appeals 10 June 2003.

    Roy Cooper, Attorney General, by Laura E. Crumpler, Assistant Attorney General, for the State.

    Paul M. Green for defendant-appellant.

    STEELMAN, Judge.

    Defendant, Elizabeth Rose Richardson, appeals from judgments based on convictions of felony child abuse and second-degree murder. She was sentenced to 196 to 245 months in prison on the murder charge and 73 to 97 months on the child abuse charge. For the reasons discussed herein, we find no error.
    The State's evidence tended to show that defendant and her boyfriend, Mark Oakley, broke up on Friday, 14 July 2000. They made up later that night. On 15 July 2000, Oakley babysat defendant's son, six month-old Devon Richardson, at Oakley'sfather's home. That evening, defendant and Oakley dropped Devon off with defendant's mother, Rosie Pearsall, so that they could go to the movies. When defendant and Oakley returned, Pearsall asked them about the bruises she saw on Devon's torso. Defendant was upset about the bruises, but she did not take Devon for medical attention because she was afraid that social services would remove Devon from her custody.
    On Sunday, 16 July 2000, defendant, Devon and Oakley went to the home of Troy Pearsall, defendant's step-father. Defendant and her sister, Lisa Pearsall, also lived there. Defendant, Devon and Oakley stayed the night. On Monday, 17 July 2000, defendant had an argument with her step-father, who had told her to move out of his home. Oakley comforted her, saying that she could move in with him and his father. In the afternoon, defendant and Oakley went out for fast food and to run errands. They left Devon in the care of Lisa Pearsall. When defendant and Oakley returned, they smoked marijuana with Lisa. Then, Lisa and defendant went out for candy, leaving Devon with Oakley for approximately fifteen minutes. After defendant and Lisa returned, Oakley went to the bathroom. On his way out, he checked on Devon, who seemed to be asleep in his swing. Defendant, who was standing nearby, heard Devon make a gurgling sound. She checked on him and found him unresponsive. She handed Devon to Oakley and went to call for emergency assistance.    Paramedic Brian Bose responded to the call. He found Devon not breathing and without a pulse. Devon's color was bluish and there were blue and yellow bruises on his torso.
    Debbie Farmer spoke with defendant at the hospital. Farmer asked defendant what had happened. Defendant replied that she had given Devon a bottle while he was in his swing. She was in the kitchen and Devon was in a back room. When she checked on Devon, he made a noise and she began CPR. Defendant continuously asked Farmer about the results of x-rays taken of Devon.
    Dr. Kimberly Yarborough, Devon's treating physician, noted that he was completely unresponsive. She believed that the green and yellow bruises found on Devon's chest and upper abdomen were several days old due to their coloring. Dr. Yarborough asked defendant if Devon had experienced any trauma that would result in bruising or cardiac respiratory arrest. Defendant replied “No” and stated that Devon was premature and had multiple respiratory problems. Dr. Yarborough noticed that Devon had experienced retinal hemorrhages, a classic symptom of shaken baby syndrome. Retinal hemorrhages reflect pressure and bleeding in the head. She found a palpable skull fracture at the back of Devon's head.
    Nann Tyree with the Person County Department of Social Services (DSS) came to the hospital to investigate whether child abuse had occurred. Tyree interviewed defendant, who stated thather mother, Rosy Pearsall, had inquired about the marks on Devon's chest after watching him on 15 July 2000. Devon appeared fine on 16 July 2000. On 17 July 2000, Devon was in the swing when it broke. She stated that Oakley then took the child. Because Devon was not breathing and his lips were blue, defendant began CPR. During the interview, defendant was not crying, although she was making “facial grimaces” “like [she] was pretending to cry and there [were] no tears[.]”
    Dr. Desmond Runyan, a pediatrician, noted that Devon had several injuries, including multiple skull fractures, three left ribs fractures along his spine, three right rib fractures along his spine, a left ulnar fracture and a fibula fracture. Dr. Runyan testified that the rib fractures were significant. Babies have “very elastic” ribs with “lots of cartilage” that are difficult to break. He also testified that six month-old babies are difficult to bruise because they are not up and walking around and because their capillaries are so elastic. His opinion was that Devon died from physical child abuse and suffered from shaken baby syndrome. The autopsy corroborated this opinion and listed head injuries as the cause of death with homicide as a contributing condition. Dr. Runyan noted that Devon could not have gotten his injuries from a baby swing and that the trauma to his head had to have occurred very close to the time he was discovered unresponsive.    Mark Oakley, defendant's boyfriend, testified that when he visited defendant at her home, Devon would be in a back bedroom with the door closed in either his crib or his swing. The bedroom door remained closed because everyone in the home smoked. Defendant had expressed to Oakley that she wished she could pack Devon's clothes and send him to his father. He further stated that defendant was upset after defendant's mother showed defendant the bruises on Devon. Oakley thought that defendant did not take Devon to the hospital after finding the bruises because she would not be able to explain them and “she was scared social services would take him away.”
    On 17 July 2000, Oakley had smoked marijuana with defendant and members of her family. He was just returning from the restroom when he spotted defendant in the back bedroom with Devon. Defendant told Oakley that she heard Devon make a noise. She went to check on him. Devon was unresponsive. Oakley testified that he did not injure Devon.
    Officer Charles Gentry of the Person County Sheriff's Department investigated the emergency call. When he arrived at defendant's home, defendant stated that her baby was dying, she had tried CPR and it was not working. Devon, who was lying in the middle of the bed, was blue, very still, and not making any noises.
    On 2 August 2000, defendant was arrested and charged withfelonious child abuse and murder. At trial, defendant did not present any evidence. She was convicted of second-degree murder and felonious child abuse. Defendant appeals.
    In her first assignment of error, defendant argues the trial court erred by denying her motion to dismiss both charges on grounds of insufficient evidence. She specifically asserts that the evidence was insufficient to prove that she caused the injury, acted in concert with another or that she acted with malice. We disagree.
    In considering a motion to dismiss, the only issue for the trial court is whether there is substantial evidence of each essential element of the charged offense and of the defendant being the perpetrator. State v. Crawford, 344 N.C. 65, 73, 472 S.E.2d 920, 925 (1996). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. State v. Vick, 341 N.C. 569, 583-84, 461 S.E.2d 655, 663 (1995). The court must consider the evidence in the light most favorable to the State and give the State the benefit of every reasonable inference from that evidence. State v. Jaynes, 342 N.C. 249, 274, 464 S.E.2d 448, 463 (1995), cert. denied, 518 U.S. 1024, 135 L. Ed. 2d 1080 (1996). Contradictions and discrepancies in the evidence are resolved in favor of the State. State v. Gibson, 342 N.C. 142, 150, 463 S.E.2d 193, 199 (1995).    Felony child abuse is the intentional infliction of serious injuries by a caretaker to a child. N.C. Gen. Stat. § 14-318.4 (2001); State v. Phillips, 328 N.C. 1, 399 S.E.2d 293, cert. denied, 501 U.S. 1208, 115 L. Ed. 2d 977 (1991). A finding that the victim suffered from the “battered child syndrome” raises the inference that the person supervising the child intentionally inflicted the injuries suffered by the child. State v. Campbell, 75 N.C. App. 266, 330 S.E.2d 502 (1985), rev'd on other grounds, 316 N.C. 168, 340 S.E.2d 474 (1986).
    In State v. Noffsinger, 137 N.C. App. 418, 528 S.E.2d 605 (2000), the evidence was sufficient for a conviction under section 14-318.4 where: (a) the child suffered numerous, severe injuries which were inflicted on various occasions, including burns, head trauma, fractures to the leg, arm and ribs, facial bruising, and puncture marks; (b) the defendant was laughing and talking with the co-defendant outside of the emergency room and even appeared to doze when the doctor informed her of the child's condition; and (c) the defendant's statements exonerated every other member of the household. The jury could also have found the defendant in Noffsinger guilty under a theory of aiding and abetting because the evidence indicated that she was present when the child was injured by the co-defendant, who entered a guilty plea.
    In the instant case, there was evidence that: (1) Devonsuffered from shaken baby syndrome; (2) Devon had several injuries including a fractured skull, several broken ribs and numerous bruises; (3) defendant told inconsistent versions of what happened on the day in question; (4) defendant told Oakley that their relationship may be better off without children; (5) defendant refused to seek medical care for Devon's bruises; and (6) defendant was clearly Devon's caretaker and was present when his injuries occurred.
[A] parent has a duty to take affirmative action to protect her child and may be held criminally liable if she is present when someone harms her child and she does not take reasonable steps to prevent it. We hold that the failure of a parent who is present to take all steps reasonably possible to protect the parent's child from an attack by another person constitutes an act of omission by the parent showing the parent's consent and contribution to the crime being committed.

State v. Noffsinger, 137 N.C. App. 418, 426, 528 S.E.2d 605, 611 (2000). From the evidence presented at trial, we hold there was substantial evidence from which the jury could find that defendant committed felony child abuse upon Devon.
    The elements of second-degree murder are: (1) the unlawful killing; (2) of another human being; (3) with malice; but (4) without premeditation and deliberation. N.C. Gen. Stat. § 14-17; State v. Coble, 351 N.C. 448, 527 S.E.2d 45 (2000). Defendant contends there was insufficient evidence to show that she actedwith malice.
    Our Supreme Court has determined that “'intent to kill is not a necessary element of second-degree murder, but there must be an intentional act sufficient to show malice.'” State v. Rich, 351 N.C. 386, 395, 527 S.E.2d 299, 304 (quoting State v. Brewer, 328 N.C. 515, 522, 402 S.E.2d 380, 385 (1991)). Malice is not necessarily an actual intent to take human life. State v. Wilkerson, 295 N.C. 559, 247 S.E.2d 905 (1978) “[I]t may be inferential or implied, instead of positive, as when an act which imports danger to another is done so recklessly or wantonly as to manifest depravity of mind and disregard of human life.” Id. at at 578-579, 247 S.E.2d at 916 (citations omitted). In State v. Smith, 355 N.C. 268, 559 S.E.2d 786 (2002), our Supreme Court noted, per curiam, that “evidence that injuries to the child's head and brain were caused by violent shaking and a blunt force injury to the head was sufficient to support the jury's conclusion that defendant acted with malice and to sustain defendant's conviction of second-degree murder.”
    We therefore hold that the evidence in the present case is sufficient to support a finding by the jury that defendant acted with malice as defined by Wilkerson. The evidence that the cause of death was shaken baby syndrome is sufficient to show that defendant acted with a recklessness of consequences, although theremay have been no intention to injure the child. See also State v. Hemphill, 104 N.C. App. 431, 409 S.E.2d 744 (1991). This assignment of error is without merit.
    In her second assignment of error, defendant argues the trial court erred in admitting hearsay as substantive evidence. We disagree.
    Dr. Runyan testified as an expert and presented medical records from the hospital. At trial, defendant objected to the introduction of these records except as they pertained to Dr. Runyan's opinion. The trial court admitted the records “without limitation.” No limiting instruction was requested.
    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). However, medical records can be introduced as a hearsay exception to business records. N.C. Gen. Stat. § 8C-1, Rule 803(6) (2001). Absent an allegation supported by proof that the hospital deviated from routine, the entries in a patient's hospital record are inherently reliable and admissible under the business records exception upon authentication by the proponent. State v. Miller, 80 N.C. App. 425, 342 S.E.2d 553, cert. denied, 317 N.C. 711, 347 S.E.2d 448 (1986). We consequently hold that the trial court did not err in admitting the medical records. Thisassignment of error is without merit.
    In her third assignment of error, defendant argues the trial court erred in instructing the jury on acting in concert and the battered child syndrome without sufficient evidence. We disagree.
    Defendant contends that the evidence only showed one injury prior to Devon's fatal incident which would not make him a battered child. However, as noted above, there was ample medical evidence that Devon was indeed a battered child with multiple prior injuries.
    Defendant further contends that there was no evidence that defendant shared a common purpose to commit felonious child abuse. A defendant may be found guilty of committing a crime under the theory of acting in concert if he is present at the scene of the crime acting together with another person with whom he shares a common plan although the other person does all the acts necessary to carry out the crime. State v. Abraham, 338 N.C. 315, 451 S.E.2d 131 (1994). Upon a diagnosis of battered child syndrome, it is inferred that the child's caretakers intentionally inflicted the injuries. See Noffsinger, 137 N.C. App. At 424, 528 S.E.2d at 610.
    In the instant case, Devon was diagnosed as a battered child by Dr. Runyon. The evidence further showed that defendant was at her home with her boyfriend and sister at the time Devon was injured. Both defendant and Oakley were in close proximity whenDevon was fatally injured. Further, when Devon was being watched by defendant's mother the night before he died, defendant's mother noticed the bruises on Devon. Earlier that day, Devon had been watched by Oakley. There was also evidence that Oakley and defendant had a conversation about the strain of children on their relationship. When paramedics arrived, the evidence showed that defendant and Oakley were whispering and no longer performing CPR. Further, when Ken Steenson, the clinical pediatric social work specialist, approached defendant about preparing for the death phase, defendant seemed much more concerned about the punishment for murder and manslaughter than the imminent death of her son. She specifically asked whether the death penalty would apply in the case. Defendant wrote Oakley a letter from jail. In one letter, defendant expressed her hope that someone would come forward to confess or say that Devon's injury was an accident. Oakley told defendant that he would not confess because he did not do anything. Oakley testified that he considered coming forward to say that there had been an accident just to get defendant released from jail. He stated, however, that there had been no accident.
    We hold that there was sufficient evidence of acting in concert to support the jury instruction. In addition, there was ample evidence that Devon was a battered child. This assignment of error is without merit.    In her fourth assignment of error, defendant argues the trial court committed plain error by instructing the jury on an element not charged in the child abuse indictment. We disagree.
    Plain error is an error “'so fundamental as to amount to a miscarriage of justice or which probably resulted in the jury reaching a different verdict than it otherwise would have reached.'” State v. Parker, 350 N.C. 411, 427, 516 S.E.2d 106, 118 (1999), cert. denied, 528 U.S. 1084, 145 L. Ed. 2d 681 (2000) (quoting State v. Bagley, 321 N.C. 201, 213, 362 S.E.2d 244, 251 (1987), cert. denied, 485 U.S. 1036, 99 L. Ed. 2d 912 (1988)).
    The indictment charged that defendant “did intentionally inflict serious bodily injury” upon Devon. The trial court charged the jury that it could convict defendant upon finding that defendant “intentionally inflicted serious bodily injury to the child or intentionally assaulted the child which proximately resulted in a serious bodily injury to the child.” Defendant contends the trial court exceeded its jurisdiction by submitting the child abuse charge on a lesser standard of intent that was not charged in the indictment.
    The felonious child abuse statute under which defendant was prosecuted provides, in pertinent part:
(a3) A parent or any other person providing care to or supervision of a child less than 16 years of age who intentionally inflicts anyserious bodily injury to the child or who intentionally commits an assault upon the child which results in any serious bodily injury to the child, or which results in permanent or protracted loss or impairment of any mental or emotional function of the child, is guilty of a Class C felony. “Serious bodily injury” is defined 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.

N.C. Gen. Stat. § 14-318.4 (2001) (Emphasis added). “In felonious child abuse cases, the State is not required to prove that the defendant specifically intended that the injury be serious. Moreover, felonious child abuse does not require the State to prove any specific intent on the part of the accused. State v. Chapman, 154 N.C. App. 441, 444-45, 572 S.E.2d 243, 246 (2002), rev. denied, 356 N.C. 682, 577 S.E.2d 898 (2003). See also State v. Campbell, 316 N.C. 168, 172, 340 S.E.2d 474, 476 (1986).
Thus, the intent element was not decreased by the instructions given by the trial judge. Defendant has failed to show plain error and this assignment of error is without merit.
    In her fifth and final assignment of error, defendant argues the trial court erred in finding the aggravating factor that “the victim was very young” because defendant's size and strength was considered in the murder charge. We disagree.    The trial court found the aggravating factor that “[t]he victim was very young[.]” N.C. Gen. Stat. § 15A-1340.16(d)(11) (2001). Section 15A-1340.16(d) states that “[e]vidence necessary to prove an element of [an] offense shall not be used to prove any factor in aggravation[.]” N.C. Gen. Stat. § 15A-1340.16(d) (2001). As aforementioned, the elements of second-degree murder are: (1) the unlawful killing; (2) of another human being; (3) with malice; but (4) without premeditation and deliberation. N.C. Gen. Stat. § 14-17. Evidence of Devon being “very young” was not essential or necessary to prove malice. It showed the vulnerability of the victim. See State v. Ahearn, 307 N.C. 584, 300 S.E.2d 689 (1983). See also State v. Burgess, 134 N.C. App. 632, 637, 518 S.E.2d 209, 213 (1999). In State v. Hitchcock, 75 N.C. App. 65, 330 S.E.2d 237, disc. rev. denied, 314 N.C. 334, 333 S.E.2d 493 (1985), this Court addressed the same issue and found that this argument was without merit. We find no error.
    NO ERROR.
    Chief Judge EAGLES and Judge TYSON concur.
    Report per Rule 30(e).

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