STATE OF NORTH CAROLINA
v. Craven County
No. 03 CRS 53131
WALTER GLENN HACKER
Attorney General Roy Cooper, by Assistant Attorney General
Chris Z. Sinha, for the State.
Angela H. Brown for defendant-appellant.
STEELMAN, Judge.
A jury found defendant guilty of felonious child abuse
inflicting serious physical injury, a Class E felony. Defendant
received an active sentence from the presumptive range of twenty-
nine to fourty-four months. Defendant appeals.
The State's evidence tended to show the following: On 16 May
2003, eleven-month-old T.P. arrived in the Craven Regional Medical
Center's emergency room with a mid-shaft, spiral fracture of his
right femur. The next day, orthopaedic surgeon William B.
Wheatley, MD, operated on T.P. to set the bone and placed the child
in a “spica cast, which is a long-legged cast that goes to the foot
up essentially to the chest[,]” for six weeks. Given the nature ofthe fracture and the fact that T.P. was not yet walking, Dr.
Wheatley suspected the injury stemmed from abuse.
T.P.'s mother, Abbey, began dating defendant in January of
2003, and was living with him at the time of T.P.'s injury. On 16
May 2003, Abbey went to work at 5:00 p.m. and left defendant alone
with T.P., who was in his walker “laughing and playing[.]” Within
ten minutes of her arrival at work, Abbey received a telephone call
from defendant, who said that she “needed to come home, he thought
[T.P.]'s leg was broken.” Abbey returned home immediately and
found defendant in the kitchen holding T.P., who was crying and
whose leg “was limp.” Defendant gave Abbey the following account
of T.P.'s injury:
He had went outside to smoke a cigarette. He
came back in and heard a crash. He said it
sounded like the crib was falling apart. And
he heard [T.P.] screaming. He went in there
and my crib was solid on the two walls where
[T.P.'s] head and his footboards were.
[Defendant] said he had climbed up with his
feet, along the flat piece, and somehow his
foot got all the way up, into the hole, and
his body shifted over the side of the crib,
and that he was hanging there when he walked
into the room.
Abbey took T.P. to the hospital with her neighbor.
Believing that defendant would never hurt T.P., but knowing he
had previously pled guilty to a charge of misdemeanor child abuse,
Abbey and the neighbor decided to tell the police that the neighbor
had been in the house with T.P. when the injury occurred.
According to Abbey, defendant had explained the events leading to
his prior conviction as follows:
He told me . . . that his ex-girlfriend had
left him alone with her daughter, and that she
had went into seizures and fallen off the top
of a bunk-bed and hit her head on the way
down. And they charged him with Misdemeanor
Child Abuse.
Defendant told Abbey he had pled guilty because he “was scared” and
“didn't know what was going to happen.” Based on defendant's
description of the girl's injuries, Abbey “figured there was no way
that he did that to a little girl and wasn't in jail.”
As planned, Abbey initially told police that her neighbor was
in the house with T.P. at the time of his injury. When the
neighbor later refused to participate in the false story, Abbey
told police “the truth[.]”
New Bern Police Detective B.J. Cumiskey interviewed defendant,
Abbey, and the neighbor on 19 May 2003. When asked what happened
to T.P., defendant said “he didn't know, he wasn't there.” When
apprised of the disparity between her neighbor's story and her own,
Abbey admitted that “defendant was actually watching the baby.”
Cumiskey then confronted defendant, who acknowledged “that he had
in fact lied, that he had been arrested in Jones County for a
similar incident, child abuse, and that he was basically railroaded
and he did not want that to happen to him again.” Defendant told
Cumiskey that he had “heard what sounded like the crib falling
apart, and he went into where [T.P.] was sleeping, and he found
[T.P.] with his leg in the top rung of the crib, hung over the . .
. side rail.”
After investigating the facts of defendant's prior conviction
in Jones County, Cumiskey contacted defendant on 27 May 2003 andasked him to submit to a second interview, during which he gave the
following statement to Craven County Sheriff's Detective John
Whitfield:
I lied about the entire story, telling Social
Services and the police that [T.P.] tried to
crawl out of his crib and fell . . . . I was
afraid to tell the truth because of what
happened before, in Jones County.
I have now decided to tell the truth, which is
that Abbey left for work and left [T.P.] in
his crib. . . . I got him up and tried to put
him in the walker. He didn't want to get in
the walker. He held his legs together, and I
pulled his legs apart. I pulled out and down
on his right leg, and I heard a snap.
Defendant told Whitfield that he loved and would never hurt T.P.
He conceded having “a problem with anger management[,]” but stated,
“I am willing to get help and go through therapy if I need to.”
Defendant signed the statement after reviewing it.
Defendant's former girlfriend, Casey, lived with defendant
during the first half of 2001 in Jones County, North Carolina with
her two-year-old daughter, L. On the night of 24 May 2001, Casey
left their residence at approximately 10:30 p.m. to go to the
convenience store. L. was in bed asleep and defendant was awake.
When Casey returned home thirty minutes later, defendant ran
outside and told her “there was something wrong with the baby, she
was having trouble breathing.” He told Casey that he heard a
“thump” sound from L.'s bedroom. When he went to check on her, he
found her “gasping for air.” L. was air-lifted to Pitt Memorial
Hospital in Greenville, where she remained for two weeks with
bleeding on the left side of her brain and behind her eyes. At trial defendant testified that when Abbey left for work on
16 May 2003, T.P. was in his crib “fussing and crying.” Defendant
decided to bring T.P. into the living room. As he was trying to
put T.P.'s legs into his walker, defendant “spread his leg apart
and like pulled him down, to try to get him in the walker, and his
leg popped.” Defendant was not angry or upset and did not believe
he had done anything wrong in attempting to get T.P. into the
walker. He claimed it was Abbey who decided they should lie to the
police and who made up the story about T.P. falling from his crib.
Defendant went along with Abbey's story, because he did not want to
get anybody else in trouble. He ultimately told the truth in his
written statement to Whitfield.
The trial court denied defendant's renewed motion to dismiss
at the conclusion of all the evidence.
In defendant's first assignment of error he contends the trial
court erred in admitting evidence of his prior act of child abuse
under Rule 404(b) of the Rules of Evidence for the purpose of
showing absence of accident at the time of the alleged abuse in
this case. Defendant asserts he did not claim T.P. was injured in
an accident. Rather, he testified that he had no intent to injure
the child when attempting to place him in his walker.
Having reviewed the relevant portions of the trial transcript,
we find defendant has failed to preserve this issue for appellate
review. “A defendant waives any possible objection to testimony by
failing to object to this testimony when it is first admitted.”
State v. Davis, 353 N.C. 1, 19, 539 S.E.2d 243, 256 (2000), cert.denied, 534 U.S. 839, 151 L. 3d. 2d 55 (2001). In the case before
us, Abbey testified without objection concerning defendant's prior
abuse of L. On cross-examination, defense counsel asked her,
“[b]ut you knew that [defendant] had been -- had pled guilty to
misdemeanor child abuse, did you not?” Thereafter, Casey testified
without objection regarding the incident with L., as well as
defendant's proffered explanation that he heard a noise from L.'s
room and discovered she had fallen off of her bed. Only when the
State sought to introduce a copy of his criminal judgment from
Jones County did defendant object. By allowing into evidence both
the circumstances surrounding the abuse of L. and the fact of his
guilty plea to misdemeanor child abuse, defendant waived any
objection to subsequent iterations thereof. Moreover, defendant
has not assigned plain error on appeal. N.C.R. App. P. 10(c)(4).
However, we have reviewed the transcript in this matter and
further conclude that the evidence objected to was properly
admitted under Rule 404(b) to show the absence of accident.
Accordingly, this assignment of error is without merit.
In defendant's second assignment of error he contends the
trial court erred in denying his motion to dismiss, arguing “there
was no evidence of serious bodily injury and because there was
insufficient evidence that he intended to inflict injury to
[T.P.].”
In reviewing the denial of a motion to dismiss, we must
determine whether the evidence, viewed in the light most favorable
to the State, would allow a reasonable juror to find the defendantguilty “of each essential element of the offense charged, or of a
lesser offense included therein[.]” State v. Earnhardt, 307 N.C.
62, 65-66, 296 S.E.2d 649, 651 (1982) (citations omitted). Here,
defendant was indicted for the Class C felony of child abuse
inflicting “serious bodily injury” under N.C. Gen. Stat. § 14-
318.4(a3), but was convicted of the lesser, Class E felony of child
abuse inflicting “serious physical injury” under N.C. Gen. Stat. §
14-318.4(a). The trial court did not instruct the jury on the
greater offense, finding no evidence to support a finding of
“serious bodily injury” as defined by statute. Therefore, we need
not determine if the State introduced sufficient evidence to
support the submission of the Class C felony to the jury.
In order to convict a defendant for felony child abuse, the
State must prove (1) the defendant is the parent or caretaker of a
child under the age of 16; (2) the defendant “intentionally
inflicte[d] any serious physical injury upon or to the child or .
. . intentionally committ[ed] an assault upon the child;” and (3)
the abuse inflicted by the defendant resulted in “serious physical
injury.” N.C. Gen. Stat. § 14-318.4(a) (2004); State v. Romero, __
N.C. App. __, __, 595 S.E.2d 208, 210 (2004). Although the State
must prove the defendant intentionally assaulted or injured the
child, it is not required to prove the defendant had the specific
intent to inflict serious injury. State v. Campbell, 316 N.C. 168,
172, 340 S.E.2d 474, 476 (1986). For purposes of this offense,
“serious physical injury” is an injury that causes “great pain and
suffering.” State v. Phillips, 328 N.C. 1, 20, 399 S.E.2d 293,303, cert. denied, 501 U.S. 1208, 115 L. Ed. 2d 977 (1991).
The trial court properly denied defendant's motion to dismiss.
The State adduced substantial evidence that T.P., a pre-ambulatory
infant child, sustained a spiral fracture in the middle of his
femur while in the sole care of defendant. Dr. Wheatley described
the fracture as “a rotational type of injury, where the bone breaks
at the top and it rotates around in a spiral fashion.” Defendant
lied to both the police and the child's mother about the cause of
the injury, using a story substantially similar to the story he
used in attempting to avoid responsibility for a prior act of child
abuse upon L., to which he ultimately pled guilty. Defendant's
third explanation, that he accidentally hurt T.P. while moving him
from his crib to his walker, was contradicted by Abbey's testimony
that T.P. was already in his walker when she left for work. The
nature of T.P.'s injury and the surrounding circumstances support
a finding that defendant inflicted the injury intentionally. See
State v. Riggsbee, 72 N.C. App. 167, 171, 323 S.E.2d 502, 505
(1984). Moreover, a fractured femur requiring surgery and six
weeks in a full-body cast satisfies the “serious physical injury”
standard of N.C. Gen. Stat. § 14-318.4(a). See Romero, __ N.C.
App. at ___, 595 S.E.2d at 211 (finding sufficient evidence of
serious physical injury where “the child suffered a visible bruise
to his head as a result of being struck by [a] belt”).
Defendant has identified a clerical error on the judgment.
Although he was convicted of and sentenced for the Class E felony
of child abuse inflicting serious physical injury under N.C. Gen.Stat. § 14-318.4(a), the judgment shows a conviction for child
abuse inflicting serious bodily injury under N.C. Gen. Stat. § 14-
318.4(a3). The references on the judgment to “ser[ious] bod[i]ly
inj[ury]” and to N.C. Gen. Stat. § 14-318(a3) are erroneous and
should be corrected by the trial court.
In defendant's third and final assignment of error he
“abandons” a claim of ineffective assistance of counsel, asking
that it be dismissed without prejudice so that defendant may raise
the issue later in a post-conviction motion for appropriate relief.
Because defendant has not particularized the alleged deficiencies
of his counsel, we cannot determine whether his claim is fully
reviewable on direct appeal. See State v. Fair, 354 N.C. 131, 166-
67, 557 S.E.2d 500, 524-25 (2001), cert. denied, 535 U.S. 1114, 153
L. Ed. 2d 162 (2002). Accordingly, we decline to address whether
this claim is subject to the procedural bar of N.C. Gen. Stat. §
15A-1419(a)(3) (2003), if raised in a future post-conviction
motion. See generally State v. Hyatt, 355 N.C. 642, 668, 566
S.E.2d 61, 78 (2002)(requiring defendants to raise on direct appeal
“those [ineffective assistance of counsel] claims on direct review
that are apparent from the record”), cert. denied, 537 U.S. 1133,
154 L. Ed. 2d 823 (2003).
NO PREJUDICIAL ERROR; REMANDED FOR CORRECTION OF CLERICAL
ERROR IN JUDGMENT.
Judges HUNTER and ELMORE concur.
Report per Rule 30(e).
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