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1. Child Abuse and Neglect_felonious abuse-sufficiency of evidence
The trial court did not err by denying defendant's motion to dismiss the charge of felonious child abuse inflicting serious physical injury where there was sufficient evidence that defendant intentionally inflicted injury that proved to be serious upon a nine-year-old child in his care by beating him multiple times with a belt.
2. Appeal and Error--failure to object--not giving instruction
Defendant waived any objection to the trial court's failure to inform the jury that it had sustained defendant's objection to certain testimony where it is not clear that the objection was sustained, defendant did not move to strike, and defendant did not argue plain error. Even if there was error, the testimony was not sufficiently prejudicial to warrant a new trial.
3. Child Abuse and Neglect_felonious abuse_judgment_correction of clerical
A judgment and commitment for felonious child abuse inflicting serious bodily injury as defined by N.C.G.S. 14-318.4(a3), a Class C felony, was corrected to show that defendant was found guilty of the lesser included offense of felonious child abuse inflicting serious physical injury as defined by N.C.G.S. § 14-318.4(a), a Class E felony.
Attorney General Roy A. Cooper, III, by Assistant Attorney
General Kimberly Duffley, for the State.
Cheshire, Parker, Schneider, Bryan & Vitale, by John Keating Wiles, for defendant-appellant.
Carlos Lee Williams (defendant) was convicted of felony child abuse inflicting serious injury on 26 April 2006. Defendantappeals this conviction. After careful consideration, we find no error in the trial but remand to correct a clerical error.
D.H. is the alleged victim in this case and is the nine-year- old son of defendant. D.H. did not live with defendant but did visit him periodically. On 20 March 2005, D.H. went to visit defendant. The following day, D.H.'s cousin, Quadrick, came over to spend the weekend with defendant and D.H. On 22 March 2005, defendant allowed the two boys to play with a slingshot and then allowed the boys to shoot at bottles with a BB gun. After approximately fifteen minutes, defendant told the children that the gun was out of bullets[,] and they went inside for a few hours.
Quadrick suggested that they go back outside and he and D.H. brought the BB gun back outside. D.H. held the trigger end of the gun and Quadrick held the barrel end. Defendant, who was at a neighbor's house at the time, noticed that D.H. was pointing the gun at Quadrick and yelled at the boys to '[p]ut that gun down.' Quadrick dropped his end of the gun and it went off shooting Quadrick.
Defendant ran over to D.H. and sent him to his room. D.H. testified that defendant made him take off all of his clothes except his underwear, and then started beating him with a belt. D.H. went on to testify that the beating lasted for ten to fifteen minutes, then defendant took a break for approximately five minutes, and then beat him for another twenty minutes. After a second five minute break, D.H. testified that he was beaten with the belt for another twenty-five minutes. D.H. then testified thatdefendant struck him with a belt for the fourth time another twenty-five minutes. In all, D.H. testified that defendant struck him with a belt for at least forty minutes and as much as an hour and forty minutes. D.H. also testified that defendant had him take a bath after the beatings. When D.H. returned to his mother's home, his mother noticed bruises on his arms, called Social Services, and took D.H. to the emergency room.
At the hospital, D.H. told the doctor that his father had beaten him, and he spoke with a detective who took pictures of his injuries. At trial, D.H. testified that he wore bandages for approximately one week and showed the jurors scars on his arms and legs. According to D.H., the scars were the result of injuries sustained while defendant beat him.
Aside from D.H.'s testimony regarding defendant's allegedly felonious conduct, and pertinent to the disposition of this appeal, D.H. stated that earlier on in the year like in January, or maybe the 1st um [sic] day of the new year, [defendant] was -- he was cussing at my mom and was like that he was going to start shooting people because it was a new year and stuff. Defense counsel objected, but the record does not disclose that the trial court provided counsel with a ruling on that objection or that defense counsel moved to strike the answer.
An expert in pediatric medicine, Dr. Horton, testified that he was called by an emergency room physician around 2:00 a.m. on 21 March 2005 and went to the hospital. Dr. Horton examined D.H. and discovered multiple bruising, abrasions, shallow lacerations,swelling, and concluded that D.H.'s condition was [m]oderately to seriously severe. Dr. Horton admitted D.H. to the hospital to watch for the development of a condition called compartment syndrome, where through injury the soft tissues of an extremity can swell and cause the blood supply to be cut off[.] Dr. Horton was also concerned that rhabdomyolysis could develop. Rhabdomyolysis is a condition in which injured muscles release a protein that can poison blood, causing electrolyte level problems that can lead to cardiac and cognitive problems and perhaps acute renal failure. Testing for those problems proved negative. D.H., however, was diagnosed with [n]onaccidental trauma.
Defendant's father and D.H.'s grandfather, Albert Lee Williams, testified that when he arrived at defendant's house D.H. was sitting in a chair and looked like he was kind of mad, like he was puffed up; there was something going on, but that he did not see any bruises on D.H. He also testified that D.H. had his clothes on. Williams went to the hospital, and while there, saw bruises on D.H.
Defendant's brother, Ernesto Williams, testified that he had been at defendant's home and did not see defendant hit D.H. with a belt, and that to his knowledge there was never any beating. Defendant's neighbor, on the hand, testified that she saw defendant strike D.H. with the belt four times. She later took D.H. back to his mother's and testified that she thought everything was fine[.] Defendant testified in his own defense. After the BB gun incident, defendant stated that he took [his] belt off and hit [D.H.] a couple times on the butt, and that he spanked him again a couple more times. Once inside the house, defendant stated that he spanked D.H. a couple more times to get him into [his] room. Once in the room, defendant stated that he beat him for like 10 or 15 minutes. Defendant maintains that there were not four beatings but only one and that D.H. kept his clothes on throughout. Defendant stated on cross-examination that the beatings were not intentional and that some of the injuries to D.H. likely occurred when D.H. had bumped into something.
At the close of the evidence, the trial court denied defendant's motion to dismiss. The court instructed the jury on the Class C felony defined by N.C. Gen. Stat. § 14-318.4(a3) (2005), and the lesser included offenses of the Class E felony defined by N.C. Gen. Stat. § 14-318.4(a), and a misdemeanor offense defined by N.C. Gen. Stat. § 14-318.2(a) (2005). The two subsections of N.C. Gen. Stat. § 14-318.4 contain the same elements except that to be convicted of the Class C felony the defendant must inflict a bodily injury that poses a substantial risk of death, or that causes serious permanent disfigurement, coma, a permanent or protracted condition that causes extreme pain, or permanent or protracted loss or impairment of the function of any bodily member or organ, or that results in prolonged hospitalization. N.C. Gen. Stat. § 14-318.4(a3). The Class E felony, on the other hand, requires that serious physical injury beinflicted on the child. The jury acquitted defendant of the Class C felony but found him guilty of the lesser included Class E felony. Defendant pled guilty to being a habitual felon, and the trial court sentenced him to a minimum term of imprisonment of 116 months and a maximum term of 149 months.
Defendant presents the following issues on appeal: (1) did the trial court err in denying his motion to dismiss the charge of felonious child abuse for insufficiency of the evidence; (2) did the trial court err in not striking portions of D.H.'s testimony on the grounds that it was unduly prejudicial; and (3) did the trial court commit an error in its written judgment.
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