STATE OF NORTH CAROLINA
v. Carteret County
No. 05 CRS 50120
JOHNNIE KEVIN DRIVER,
Defendant.
Attorney General Roy Cooper, by Assistant Attorney General
Anne Goco Kirby, for the State.
M. Jason Williams, for defendant-appellant.
HUDSON, Judge.
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.
No error.
Judges MCCULLOUGH and STEELMAN concur.
Report per Rule 30(e).
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