STATE OF NORTH CAROLINA,
Plaintiff,
v
.
Cumberland County
No. 01 CRS 9095
MICHAEL OREN DAVIS,
Defendant.
Roy Cooper, Attorney General, by Elizabeth J. Weese, Assistant
Attorney General, for the State.
Bruce T. Cunningham, Jr. for defendant-appellant.
STEELMAN, Judge.
Defendant, Michael Oren Davis, was convicted by a jury of
first-degree murder and felonious child abuse. Defendant appeals.
For the reasons discussed herein, we find no error.
The State's evidence tended to show that defendant was the
father of six-week-old child, Amari Mikal Zuniga. On 17 March
2001, the baby's mother, Tara Zuniga, fed the baby around eleven
o'clock a.m. After doing so, defendant took the baby downstairs so
Tara could take a nap. While defendant was downstairs, the baby
began to cry. At first, defendant tried bouncing and shaking the
baby to try and quiet him. When this did not work, defendant tried
wrapping the baby up in a blanket and laying him on the couch. When this failed, defendant lost his temper, grabbed the blanket
and pulled it toward him. This caused the baby to roll off the
couch and fall onto the floor. When the baby continued to cry,
defendant again bounced and shook the baby on his knee until the
baby stopped crying. Defendant told Detective Michael Murphy that
he bounced the baby on his knee until the baby's eyes rolled back
in his head and he stopped crying. Defendant said the baby would
“play dead for him,” that is, the baby's eyes would roll back in
his head and would then stop crying. After the baby stopped
crying, defendant wrapped him in the blanket and placed him in a
bassinet. Around three o'clock in the afternoon, the baby's mother
woke up from her nap and checked on the baby. She testified the
baby did not appear to be breathing and his hands were cold.
Someone called 911 and the paramedics arrived at the apartment
defendant shared with the baby's mother. When they arrived, the
paramedics found the baby lying on the floor. The paramedics took
the infant to the hospital where he was pronounced dead.
Dr. John Butts, Chief Medical Examiner of the State of North
Carolina, performed an autopsy on the baby. He determined the baby
died from “blunt force or _ and/or a shaking injury to his brain,
that is, impact or violent back and forth snapping of his head
causing injury to his brain.” The doctor testified this was
consistent with “shaken baby syndrome” or “abusive head trauma.”
The autopsy also revealed other injuries the baby had suffered
prior to the time of death, including: a tear or laceration of the
liver, a bruised heart muscle, and broken ribs in various stages ofhealing. During the autopsy, Dr. Butts also found evidence of
injuries the infant sustained as a result of the shaking, which
included: hemorrhages inside the retina of both eyes and
hemorrhaging within the adrenal or endocrine glands in the
abdominal cavity. Dr. Butts testified the injuries the infant
received could not have been from one gently jiggling the baby or
from the efforts used to save the baby's life. After the medical
examiner ruled the baby's death a homicide, the Fayetteville Police
Department commenced an investigation. Defendant told Officer
Murphy “he didn't mean to hurt his child” and he “continued to
place blame on himself for his child's death.”
Defendant presented no evidence.
Defendant was charged with first degree murder and felonious
child abuse. The jury found defendant guilty of first degree
murder under the felony murder rule, and guilty of felonious child
abuse. The trial court arrested judgment on the felonious child
abuse conviction and sentenced defendant to life imprisonment
without parole for first degree murder.
In his first assignment of error, defendant contends the trial
court erred in denying his motion to dismiss the charge of
felonious child abuse at the close of the State's evidence. This
assignment of error is not based upon any alleged deficiency in the
State's evidence, but rather upon the argument that the elements of
the child abuse charge were subsumed in the elements of the murder
charge. We disagree. We first note that at the close of the State's evidence
defendant moved to dismiss the felony murder charge and the
felonious child abuse charge. In support of this motion, defendant
asserted the evidence was insufficient to show that he had
inflicted the specific injuries set forth in the bill of indictment
for felonious child abuse. The trial court denied this motion. At
the close of all of the evidence, defendant renewed his motion to
dismiss and articulated a second basis for the motion. This second
basis was that the State had failed to show that defendant
intentionally inflicted the injuries upon the child.
N.C. Gen. Stat. § 15A-1446 sets forth the prerequisites for
preserving a defendant's right to appellate review. N.C. Gen.
Stat. § 15A-1446 (2003). “[E]rror may not be asserted upon
appellate review unless the error has been brought to the attention
of the trial court by appropriate and timely objection or motion.”
N.C. Gen. Stat. § 15A-1446(a). See also N.C. R. App. P. 10(b)(1)
(2003). At no time did defendant present to the trial court the
basis upon which he now asserts that his case should have been
dismissed. “[W]here a theory argued on appeal was not raised
before the trial court, 'the law does not permit parties to swap
horses between courts in order to get a better mount . . . .'”
State v. Sharpe, 344 N.C. 190, 194, 473 S.E.2d 3, 5 (1996) (quoting
Weil v. Herring, 207 N.C. 6, 10, 175 S.E. 836, 838 (1934)), cert.
denied, 350 N.C. 848, 539 S.E.2d 647 (1999). See also State v.
Hamilton, 351 N.C. 14, 22, 519 S.E.2d 514, 519 (1999) (holding “no
swapping horses” rule applied where defendant relied on one theoryat trial as a basis for admitting testimony and then asserted
another theory on appeal), cert. denied, 529 U.S. 1102, 146 L. Ed.
2d 783 (2000); State v. Benson, 323 N.C. 318, 321-22, 372 S.E.2d
517, 518-19 (1988) (applying the “no swapping horses” rule where
defendant asserted one theory at trial to support his written
motion to suppress, but relied on another theory on appeal); State
v. Woodard, 102 N.C. App. 687, 696, 404 S.E.2d 6, 11 (denying
defendant the use of a theory different from the one he relied on
at trial regarding his request for an instruction), disc. rev.
denied and appeal dismissed, 329 N.C. 504, 407 S.E.2d 550 (1991).
In his brief, defendant-appellant states: “The Appellant
acknowledges that the argument of defense counsel was somewhat
confusing about what he was asking the Trial Court to do.”
Defendant goes on to argue that due to the inherent complexity of
the issue, we should consider this assignment of error even though
it was not squarely raised at trial. To allow defendant to argue
a completely different theory in this Court based upon such an
argument would be to effectively eviscerate our Supreme Court's
holding in Sharpe and its predecessors. We hold that the issue
raised in defendant's first assignment of error was not presented
to the trial court and, therefore was not properly preserved for
appeal. This assignment of error is without merit.
In his second assignment of error, defendant contends the
imposition of a life sentence for felony murder, where the elements
of the predicate felony are subsumed by the elements of the murder,
violates his constitutional right to due process, to be free fromdouble jeopardy, and from cruel and unusual punishment. We
disagree.
As noted above, the issue of whether the elements of felonious
child abuse were subsumed by the elements of murder was not
preserved for review by this court. Further, constitutional
questions not raised and passed upon in the trial court will
ordinarily not be considered on appeal. State v. Nobles, 350 N.C.
483, 495, 515 S.E.2d 885, 893 (1999); State v. Hunter, 305 N.C.
106, 112, 286 S.E.2d 535, 539 (1982) (citing State v. Dorsett, 272
N.C. 227, 158 S.E.2d 15 (1967)). Here, defendant did not raise any
of these constitutional issues at trial. Therefore, we will not
address those issues. This assignment of error is without merit.
We further note that defendant did not assign plain error to
either of his assignments of error, therefore he his has waived
plain error review. State v. Bowers, 146 N.C. App. 270, 275, 552
S.E.2d 238, 241, disc. rev. denied, 354 N.C. 576, 559 S.E.2d 185
(2001); N.C.R. App. P. 10(c)(4) (2003).
NO ERROR.
Judges MCGEE and CALABRIA concur.
Report per Rule 30(e).
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