An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-463


Filed: 03 August 2004


v .                         Cumberland County
                            No. 01 CRS 9095

    Appeal by defendant from judgment entered 17 January 2003 by Judge Ola M. Lewis in Cumberland County Superior Court. Heard in the Court of Appeals 18 March 2003.

    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).
    Judges MCGEE and CALABRIA concur.
    Report per Rule 30(e).

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