STATE OF NORTH CAROLINA
v. Carteret County
No. 05 CRS 50120
JOHNNIE KEVIN DRIVER,
Attorney General Roy Cooper, by Assistant Attorney General
Anne Goco Kirby, for the State.
M. Jason Williams, for defendant-appellant.
Defendant appeals his conviction for felony child abuse under
N.C. Gen. Stat. § 14-318.4(a) (2006). We do not find error.
The State's evidence tended to show the following: On the night of 7 January 2005, fourteen-year-old Sara Guthrie babysat defendant's two-year-old son with her friend, Samantha Rose. As she was putting on the child's pajamas, Sara saw bruises all over his body, and bite marks on his fingers and ears. She showed the child's injuries to her aunt, Michelle Godwin, who drove the child to the home of Sara's mother, Carol Guthrie. After examining the child, Carol and Godwin contacted the police and EMS personnel, who took the child by ambulance to the emergency room. Rose described the child's injuries as cuts on his chest[,] whips on his back[,] and a purple bruise in the center of his ear from where he got bit. She further testified that [h]is fingers were bitten; his index fingernail was bit[ten] off.
Godwin observed the bite marks on his fingers, the bite marks on his ears, which were purple, and then the lacerations on his back, the hand grips on his arms . . . just like somebody grabbed him, the bruises were just like somebody's hand. And his little legs were bruised. She further noticed that the child's fingers were badly bitten, to the point where some of his fingernails were coming off.
Dr. Austin Burgess, who examined defendant's child in the emergency room of Carteret General Hospital on 7 January 2005, found on the child's back several areas there of what we call pattern injuries, linear injuries that are characteristic of belts or narrow objects[.] Among these pattern injuries, the child had some very purplish red bruises, which were new, and then he had some yellow ones, which are usually older bruises. One of the older strap marks ran from the child's back over to his chest. On each of the child's upper arms were grab injuries, . . . where the fingers dug into the skin and bruised. The child had scrapes or abrasions on basically every finger that he has, in multiple places. Dr. Burgess also found bruising on the back of both ears, right at the top _ outside the ear as well. And also, he had bruises on the inside, behind the ear on both sides. Concerned by the degree of bruising, he ordered a chest x-ray of the child,which was negative for rib fracture or damage to the lung. Dr. Burgess concluded that most all of his bruises were consistent with what we call non-accidental trauma. He opined that the wounds to the boy's fingers and ears would cause great pain to a child his age.
Wendy Quinn, a social worker for the Carteret County Department of Social Services, responded to the emergency room on 7 January 2005, and observed a bruising, old and new bruising on [the child's] back, lacerations that appeared to be from a belt mark across his shoulder, bruising on his ears, a yellowish bruises on the arms. The child's fingers looked in really bad condition, all of his little fingers. And one of the fingernails was actually missing[.] She also noted severe bruising on the top and back of the ears.
On 12 January 2005, Quinn interviewed defendant, who told her that basically what he believed he did was discipline, and not abuse. Defendant explained that he had bitten the child's fingers in order to teach him not to bite, and had then moved to the child's ears because his fingers were all chewed up, and so he went to his ears. When asked about the belt marks on the child, defendant advised [Quinn] that he was giving him . . . a lick for not listening, and that that had been going on a few weeks[.]
Major Frank Galizia of the Carteret County Sheriff's Department spoke with defendant about his son's injuries at defendant's residence on Harkers Island at approximately 1:30 a.m. on 8 January 2005. Galizia formally interviewed defendant after hewas taken into custody and transported to the Sheriff's Department. Defendant told Galizia that he had increased the severity of his son's discipline, because the child had started peeing on himself and pooping in his pants, and that within the last month, prior to January, [the child] had started biting and spitting. After asking other parents how to deal with a biting child, defendant began biting his son back whenever his son bit him. Likewise, when his son would hit defendant, defendant would hit him back, not hard or anything, but just hit him back. Defendant stated that he had only started hitting [the child], with the belt, within the last month[,] and had used the belt about four or five times prior, in that month. He explained that he resorted to a belt only after hitting him with his hand didn't work[.] After finding a bruise on his son's back, however, defendant knew that he hit him too hard. Defendant admitted biting the child on one of his ears probably too hard[,] and acknowledged that he understood, he knew that he went way too far in trying to discipline his son. He also made clear to Galizia that he was the only one who had physically disciplined the child.
Defendant testified that he loved his son and intended only to correct his misbehavior, not to harm him. He conceded that he had caused the bruises on his son's back, shoulders, and chest by hitting him with a belt, had caused the grasping bruises to the child's arms while trying to stop him from sticking a nail file into an electrical socket, and had caused the abrasions on his fingers and one of his ears by biting the child. However, heascribed one of the child's bruises to a fall from a bicycle and claimed that the child's fingernail had fallen off after he accidentally closed his hand in a dresser drawer. When asked about his son's reaction to his discipline, defendant testified:
[He] hollered out when I bit his ears _ when I bit his ear. But he never hollered out when I bit his fingers. All he did was, ouch, ouch, ouch. And . . . it lasted a second. . . .
When I struck him with a belt, the first couple of times, he never cried at all. . . . The last couple of times he learned how to cry. As soon as _ you could just touch him with the belt, and he wanted to start crying. But he never ever screamed out in extreme pain. I never hit him hard enough to cause extreme pain.
Defendant told the jury that he did discipline [his son] to cause pain, to correct an attitude[,] but did not seriously injure the boy or cause him great pain. He noted, [W]hen I whipped my son with the belt, my son never screamed in pain. I never put my son through extreme pain, serious pain, . . . [or] discomfort, nothing. Similarly, defendant said he knew better than to bite [his son] excessively, to where I knew I was going to cause great pain. Defendant insisted the child's injuries did not cause him any pain but were merely surface bruises and abrasions, not lacerations or deep bone bruises.
Defendant first argues that the trial court erred in denying his motion to dismiss the charge of felony child abuse, absent sufficient evidence to show a serious physical injury to the child, an essential element of the offense under N.C. Gen. Stat. § 14-318.4(a). See, e.g, State v. Romero, 164 N.C. App. 169, 171, 595 S.E.2d 208, 210 (2004). We disagree. In reviewing the denial of a motion to dismiss, we must decide whether the evidence adduced at trial, when viewed in the light most favorable to the State, would permit a reasonable juror to find the defendant guilty of the offense beyond a reasonable doubt. See, e.g., State v. Sumpter, 318 N.C. 102, 108, 347 S.E.2d 396, 399 (1986) (citations omitted). For purposes of our review, [t]he [S]tate is entitled to all reasonable inferences that may be drawn from the evidence. Contradictions in the evidence are resolved favorably to the [S]tate. Id. at 107, 347 S.E.2d at 399 (citations omitted).
As noted above, defendant challenges only the sufficiency of the evidence of a serious physical injury to his son. Interpreting N.C. Gen. Stat. § 14-318.4(a), our courts have defined serious physical injury as one that causes the child great pain and suffering. State v. Phillips, 328 N.C. 1, 20, 399 S.E.2d 293, 302-3, cert. denied, 501 U.S. 1208, 115 L. Ed. 2d 977 (1991). [B]ecause the nature of an injury is dependant upon the relative facts of each case, whether an injury is 'serious' is generally a question for the jury. Romero, 164 N.C. App. at 172, 595 S.E.2d at 211. Moreover, although the evidence must show that the defendant intentionally assaulted the child, it need not show any specific intent by the defendant to inflict a serious physical injury. State v. Campbell, 316 N.C. 168, 172, 340 S.E.2d 474, 476 (1986).
In Romero, the evidence showed that defendant hit his one-year-old son at least once with a belt, that the child began tocry after being hit, and that the child suffered a visible bruise to his head as a result of being struck by the belt. Romero, 164 N.C. App. at 172, 595 S.E.2d at 211. Noting that neither the statute nor our case law demand that an injury require immediate medical attention in order for it to be considered a 'serious physical injury[,]' we held that these facts were sufficient to support the defendant's conviction for felony child abuse inflicting serious physical injury under N.C. Gen. Stat. § 14- 318.4(a). Id.
Here, undisputed evidence showed that defendant repeatedly hit his two-year-old son on the back with a belt, leaving him severely bruised. Defendant further acknowledged bruising the child's chest and shoulders with the belt, biting abrasions onto each of the child's fingers and at least one of his ears, and causing grasping bruises on the child's arms. As discussed below, the child's treating physician testified that the boy's injuries would cause great pain to a child of his age. Viewing the evidence in the light most favorable to the State, we find it was sufficient to withstand a motion to dismiss. See Romero, 164 N.C. App. at 172, 595 S.E.2d at 211.
Defendant next claims that the trial court erred by allowing Dr. Burgess to testify that the injuries sustained by defendant's son, as observed in the emergency room on the night of 7 January 2005, would have resulted in great pain to the child. Dr. Burgess was certified without objection as an expert witness in the field of emergency medicine. On direct examination, the prosecutorelicited the following testimony from Dr. Burgess regarding the child's injuries:
Q. And do you have an opinion satisfactory to yourself and to a medical certainty, Dr. Burgess, whether these kind of multiple pattern bruises, consistent with hitting with a narrow belt, would cause pain in a child his age?
A. Definitely, it would.
Q. How about the injuries to the fingers, whether they were done by biting or scraping, would that cause great pain to that child?
A. Yes, it would.
Q. Okay. And of the biting on the ear, would that in fact cause great pain?
A. Yes, it would.
[DEFENSE COUNSEL]: I'm going to object. That's a legal conclusion at this point.
T[HE COURT]: Do you care to be heard further on that objection?
[DEFENSE COUNSEL]: No, sir.
T[HE COURT]: Note the objection, overruled. Go ahead, sir. In your opinion?
[DR. BURGESS]: That would cause great pain.
Q. Okay. And again, would the grasping itself cause that sort of pain to a child of this age?
A. Yes, it would.
Because case law has defined serious physical injury under N.C. Gen. Stat. § 14-318.4(a) as an injury that causes great pain and suffering[,] Phillips, 328 N.C. at 20, 399 S.E.2d at 303, defendant argues that Dr. Burgess's testimony amounted to a legal conclusion as prohibited by [N.C.R. Evid.] 704[.] In order to preserve an objection for appeal, a defendant must raise a timely objection to the contested evidence. See N.C.R. App. P. 10(b)(1). The quoted passage of the trial transcript reveals that defendant made no objection to Dr. Burgess's testimony that the pattern bruises he observed on the child's back would [d]efinitely cause pain in a child his age[,] or to his testimony that the injuries to the child's fingers would cause great pain to that child. Accordingly, defendant failed to preserve his objection to this evidence for review by this Court, and further waived objection to Dr. Burgess' subsequent testimony of like effect. See State v. McBryde, 55 N.C. App. 473, 475, 285 S.E.2d 866, 867 (1982) (By failing to object to the first question and answer eliciting this evidence, defendant waived his objection and right to assert its admission as grounds for a new trial) (citing State v. Logner, 297 N.C. 539, 256 S.E.2d 166 (1979), State v. Sanders, 288 N.C. 285, 218 S.E.2d 352 (1975), cert. denied, 423 U.S. 1091 (1976), State v. Little, 278 N.C. 484, 180 S.E.2d 17 (1971)). Moreover, defendant has not assigned plain error under N.C.R. App. P. 10(c)(4), such that the admission of this evidence would be subject to review on this basis. State v. McClary, 157 N.C. App. 70, 74, 577 S.E.2d 690, 693, appeal dismissed, disc. review denied, 357 N.C. 466, 586 S.E.2d 466 (2003) (noting that a defendant must 'specifically and distinctly' allege plain error in his assignments of error) (citation omitted). We dismiss this assignment of error.
The trial court properly admitted Dr. Burgess's opiniontestimony under Rule 702(a). The ultimate question for the jury was whether defendant inflicted a serious physical injury within the meaning of N.C. Gen. Stat. § 14-318.4(a). Dr. Burgess did not opine that the child's injuries satisfied the statutory standard for a serious physical injury. Rather, he stated only that the injuries he observed on the victim would cause great pain to a child of the his age. The phrase great pain is not a legal term of art denoting some standard beyond the ken of an emergency room physician. Moreover, our courts have allowed medical experts to offer opinion testimony regarding the amount of pain and suffering caused by a victim's injuries. See State v. Vick, 341 N.C. 569, 582, 461 S.E.2d 655, 662 (1995) (citing State v. Bearthes, 329 N.C. 149, 162, 405 S.E.2d 170, 177 (1991)). Such expertise was particularly likely to assist the jury in this case, given the young age of the victim_whom defendant described as a two-and-a- half year old . . . that had about a 24-word vocabulary. Accordingly, defendant's assignment of error is overruled.
Defendant withdraws his two remaining assignments of error.
Judges MCCULLOUGH and STEELMAN concur.
Report per Rule 30(e).
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