An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-109


Filed: 20 July 2004


v .                         Wayne County
                            No. 00 CRS 53583

    Appeal by defendant from judgment entered 12 April 2002 by Judge Carl L. Tilghman in Wayne County Superior Court. Heard in the Court of Appeals 15 March 2004.

    Attorney General Roy Cooper, by Assistant Attorney General Emery E. Milliken, for the State.

    Nora Henry Hargrove for the defendant.


    Anthony Swain Carter (“defendant”) appeals his conviction of felony child abuse resulting in serious physical injury. For the reasons stated herein, we find no error in the trial court's judgment.
    The evidence at trial tends to show the following: On 29 November 1999, defendant brought his six-week-old son to Goldsboro Pediatrics. The child would not eat, awake, nor move his eyes and his ribs appeared injured. Dr. Lawrence Nickens (“Dr. Nickens”) examined the child and sent him to Wayne Memorial Hospital. The child was then transferred to Pitt Memorial Hospital due to the seriousness of the injuries. Dr. Nickens determined that thesymptoms were indicative of a brain injury, specifically an acute and chronic subdural hematoma. The child also had a clavicle fracture, multiple rib fractures and retinal hemorrhages. These injuries suggest the child was a victim of shaken baby syndrome. Dr. Steven Coker, an expert in pediatric neurology, and Dr. Rebecca Coker, an expert in pediatric medicine, concurred with the diagnosis of shaken baby syndrome and Dr. Rebecca Coker suggested classic signs of battered child syndrome. Dr. Rebecca Coker also examined the birth records and found no abnormalities.
    On 1 December 1999, the Wayne County Department of Social Services notified the Wayne County Sheriff's Department to investigate the possible child abuse. Detective Sergeant Dean Roscoe (“Detective Roscoe”) responded to the call, interviewed the parents and decided upon defendant as the primary suspect. In furtherance of his investigation, Detective Roscoe suggested the parents take a polygraph examination. Eventually defendant and the mother of the child agreed.
    The State Bureau of Investigation administered the polygraph examination on 3 May 2000. Defendant signed a polygraph examination release form, indicating that the test was voluntary, could be stopped at any time, and that defendant was not under arrest. Defendant then took the polygraph examination. After the polygraph examination was administered, defendant sat in a room with three officers and signed a confession written by Detective Roscoe. Defendant was not under arrest at the time the confessionwas given. After the confession, defendant was arrested and indicted on a charge of felony child abuse.
    Defendant filed a pretrial motion to suppress which contested the voluntariness of the confession. Defendant later withdrew the motion to suppress on the condition that, at trial, defendant would be permitted to challenge the credibility of the confession by testifying regarding the circumstances under which defendant confessed. On direct examination during trial, defendant testified that he did not read the release form and felt as though he could not leave the polygraph examination room. Defendant testified that he did not read the written confession and that the confession included statements he did not make. Defendant also testified that there were other possible causes of the child's injuries, citing difficulties during the child's birth and the possibility of other persons causing the injuries. The State objected to defendant's testimony that he was not advised of his Miranda rights prior to the polygraph examination. The trial court sustained the State's objection. The jury convicted defendant on the charge of felony child abuse resulting in serious injury.
    As an initial matter, we note that defendant's brief contains arguments supporting only two of the original twelve assignments of error on appeal. The ten omitted assignments of error are deemed abandoned pursuant to N.C.R. App. P. 28(b)(5) (2004). We therefore limit our review to those assignments of error addressed in defendant's brief.    The remaining issues presented on appeal are whether (I) the trial court erred by prohibiting defendant from testifying that he was not advised of his Miranda rights; and (II) the evidence was sufficient to prove each element of felony child abuse.
    Defendant first argues that the trial court erred by prohibiting defendant from testifying that he was not advised of his Miranda rights, thereby depriving him of his constitutional right of confrontation and right to present a defense. We disagree.
    “The United States Supreme Court has stated that 'the circumstances surrounding the taking of a confession can be highly relevant to two separate inquires [sic], one legal and one factual.'” State v. Leeper, 356 N.C. 55, 60, 565 S.E.2d 1, 4 (2002) quoting Crane v. Kentucky, 476 U.S. 683, 688 (1986). For this reason, “the factual issue of credibility for a jury's consideration stands apart from the issue of voluntariness that is decided as a question of law by a trial judge.” Leeper at 60, 565 S.E.2d at 4. “[E]vidence about the manner in which a confession was obtained is often highly relevant to its reliability and credibility.” Crane, at 691. Thus, defendant is correct in arguing that he should be given full opportunity to address the circumstances surrounding the written confession.
    Assuming, without deciding, that the trial court erred by not allowing defendant to testify that he was not advised of his Miranda rights, or otherwise informed of his rights prior to his confession, we conclude that defendant was not prejudiced by thecourt's action. The trial transcript tends to show that the same information was admitted into evidence. Defendant was allowed to introduce the following pertinent facts surrounding his confession into evidence: Detective Roscoe told defendant that the only way to resolve this matter would be for defendant to volunteer for an interview and a polygraph examination; defendant was given a form to sign prior to the polygraph examination, but he was never told that the form stated he was voluntarily taking the polygraph examination; defendant did not believe he was allowed to terminate the interview with the detectives; defendant was told that if he did not give a statement, then he would be arrested; defendant was never asked to read the written confession before signing it; and when defendant shifted in his seat, a detective put his hand on defendant's leg and told him to “sit back.” In addition, Detective Roscoe testified that defendant was not read the Adult Advice of Rights form at the time of defendant's confession because he was not under arrest.
    We conclude that defendant was not prejudiced by the trial court sustaining the State's objections to defense counsel's questions about Miranda rights and the Adult Advice of Rights form because defendant was allowed to introduce plenary evidence concerning the circumstances surrounding defendant's confession. Defendant's first assignment of error is overruled.
    Defendant next argues that the evidence was not sufficient to prove each element of felony child abuse. We disagree.     In a ruling on a motion to dismiss, the trial court must determine whether there is substantial evidence of each element of the offense charged. See State v. Bullard, 312 N.C. 129, 160, 322 S.E.2d 370, 387 (1984). “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, 78-9, 265 S.E.2d 164, 169 (1980), citing Thompson v. Wake County Bd. of Educ., 292 N.C. 406, 233 S.E.2d 528 (1977). When reviewing the evidence, the trial court must consider all evidence in the light most favorable to the prosecution, granting the State the benefit of every reasonable inference. See State v. Brown, 310 N.C. 563, 566, 313 S.E.2d 585, 587 (1984). “If the trial court determines that a reasonable inference of the defendant's guilt may be drawn from the evidence, it must deny the defendant's motion and send the case to the jury even though the evidence may also support reasonable inferences of the defendant's innocence.” State v. Smith, 40 N.C. App. 72, 79, 252 S.E.2d 535, 540 (1979).
    In the present case the State charged defendant with felonious child abuse resulting in serious physical injury, a violation of N.C.G.S. § 14-318.4(a). Thus, to survive a motion to dismiss, the State must present substantial evidence that defendant is a “parent or any other person providing care to or supervision of a child less than 16 years of age.” Further, the State must prove that defendant intentionally inflicted “any serious physical injury upon or to the child,” or that defendant intentionally assaulted the child, the result of which is serious physical injury. N.C.G.S. §14-318.4(a) (2003). Defendant argues that the State's evidence was insufficient to prove that defendant's acts caused the injuries sustained by the child. We disagree.
    Defendant's signed confession describes an incident three weeks prior to the child's hospitalization where the defendant became angry and shook the child “five times back and forth.” Defendant also confessed that on the night before the child's hospitalization, defendant again shook the child and then dropped him from a height of one foot into the crib. Defendant testified that he was not aware that these statements were included in the confession when he signed it. However, the State offered rebuttal evidence in the form of testimony by Detective Roscoe that defendant knew the contents of the confession statement when he signed it.
    We also note that the State's medical evidence corroborates the statements in the confession. Dr. Nickens testified that he recognized specific physical symptoms of shaken baby syndrome, and that the child's injuries were not consistent with a fall. Dr. Rebecca Coker testified that the child's injuries were acute, meaning that the injuries had occurred within hours or days of hospitalization. She also testified that the injuries suggested battered child syndrome.
    Viewing this evidence in the light most favorable to the State, we conclude that this evidence is sufficient for a reasonable person to conclude that defendant intentionallyinflicted serious harm on the child. Thus, the trial court did not err in denying defendant's motion to dismiss.
    Judges LEVINSON and THORNBURG concur.
    Report per Rule 30(e).

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