STATE OF NORTH CAROLINA
v
.
Randolph County
No. 05 CRS 051523
MARSHALL DARRELL OVERBY
Attorney General Roy A. Cooper, III, by Assistant Attorney
General Linda Kimbell, for the State.
John T. Hall, for defendant.
JACKSON, Judge.
At approximately 2:00 in the afternoon on 17 February 2005,
Sergeant Jeff McCormick (“Sergeant McCormick”) of the Wadesboro
Police Department responded to a report expressing concern about a
child inside a van parked at the Feed My Lambs ministry. Sergeant
McCormick, along with two other officers from the Wadesboro Police
Department, found Marshall Overby (“defendant”) in the van with a
two-year-old, male child, later identified as R.P. Officers
noticed that R.P. was sitting in a car seat resting on the floor
between the two front seats, and that the car seat was not strapped
down.
At trial, Sergeant McCormick explained,
When I first noticed the child, I could tell
he had a knot on his forehead, which has [sic]bruising around it. Also both of his eyes up
under them was [sic] black and blue. I
noticed, I think it might have been his right
ear, it looked like it had on the top where it
looked like to me maybe cigarette burns. The
child's left ear was [sic] bruising around the
outside and on the inside of it.
Sergeant McCormick addressed defendant and inquired about the cause
of the child's condition. Defendant explained that in the process
of moving a child's play table, the table had fallen on R.P.
Sergeant McCormick became suspicious and suggested that a table
falling on the child could not have caused the type and number of
injuries on the child. Consequently, Sergeant McCormick contacted
emergency medical services (“EMS”), and also radioed the police
dispatcher and requested that the Department of Social Services
(“DSS”) be contacted.
Teresa Morton (“Morton”) with Anson County EMS arrived at the
scene to investigate the child's injuries. Defendant became upset
and stated that “he didn't see that the child needed to be
checked.” Defendant was holding R.P. and refusing to turn him over
to the police officers. Morton explained that defendant “was
screaming to the top of his lungs that they were accusing him of
beating his child.” Defendant reluctantly turned the child over
when officers informed him that they would take him into custody if
he did not relinquish control of the child.
During her examination, Morton noted that
[t]he baby was very bruised, both eyes were
black and blue. There was bruising all up
both sides of his cheeks, his neck area. The
left ear was completely purple and reddish
tint inside and out, the whole back of it,with some dried blood inside of it. There was
a large knot on the front of his forehead.
Morton also testified that R.P. “had several deformities throughout
the top of his head that you could fee[l].” These “little knots”
and “lacerations” could be seen and felt “throughout his entire
head area, the top and back.” Morton also discovered cigarette
burn marks around the top of R.P.'s right ear, and Morton testified
that the burn marks “were fresh looking, because they had dried
blood around them.”
After conducting the initial examination, Morton, along with
her partner, Billy Gibson, and her supervisor, Scott Russell,
brought R.P. into the back of the ambulance and helped R.P. change
out of his clothes, which Morton described as “dirty” and “soaking
wet.” Morton testified that “[t]he front of the shirt that he had
on looked like dried vomit, and I can say that because I have the
medical training to describe that.” The Feed My Lambs ministry
provided clean clothes and clean diapers, which defendant initially
refused. Morton explained that defendant “started cussing at the
ladies in the ministry store concerning the clothes” and stating
“that he wasn't going to take no . . . damned charity from
anybody.” Defendant eventually conceded, and while helping R.P.
out of the soiled clothes, Morton found additional bruising on
R.P.'s body _ specifically, “on the chest area, the arms, the neck,
the entire back area.” Morton also discovered extensive bruising
when she and her partner removed R.P.'s diaper.
When I went to remove the diaper, also which
was soaked, I mean it was just completely
soaked through, that's when he threw hislittle hands down to his straddle and started
saying daddy hurts. And when I pulled the
diaper back, that's when I seen all the red
marks and the bruisings that was through his
straddle and on his private area. Bruising
all down his legs, most of them were the
purplish tint to them. There was some that
was older looking, which is the yellowish
type. The back of his back down across his
buttocks was like _ I thought at first it was
like marks from a hairbrush. It looked just
like something that had hit him and left
little, like little spike marks. And it was _
it was all the way down across his buttocks,
down the back of his legs, inside of his legs.
We pulled his shoes off. He had blood on his
socks, and there was marks on the bottom of
his feet, the top of his feet, and there was
some dried blood there also.
When Morton removed R.P.'s clothes, R.P. made comments such as
“[R.P.] bad,” “daddy hurts,” and “clothes dirty.” Based upon her
findings, including the fact that many of the injuries appeared to
have been “fresh looking,” Morton determined that R.P. needed to be
seen by other medical professionals at the hospital.
Joan Polk (“Polk”) of DSS also arrived at the scene and
entered the ambulance to meet with R.P. and the EMS workers. Polk
saw that R.P. had two black eyes and “a V on his forehead that was
bruised.” She asked R.P. what his name was and attempted to make
R.P. feel comfortable with her. Polk then conducted an examination
and testified,
I felt knots all over his head that were
swollen. And when I pulled his . . . bangs
back on his forehead, . . . I saw the V more
clearly, and it was bruised and it was
swollen. I looked at his ears and he had
burns on the outside of his earlobe on both
ears, and his ears were just red and purple.
It was blood. And there appeared to be marks,
. . . bite marks by his right eye, and he had
two black eyes, and there appeared to be aburn mark by his nostril. And there were more
burn marks by his mouth . . . and he had
bruises on his neck that were in various
stages, anywhere from yellowish to green to
purple. . . . His arms had bruises and
scratches. His hands, his fingers, his chest.
I turned him around, and the whole time I was
doing this I kept talking to him, just trying
to make him feel comfortable, and his back had
bruises and marks, his chest, his belly, his
legs. The only part of him that I did not see
a mark on was his penis. Even his scrotum had
. . . a red mark, appeared to be some type of
bruise, hematoma.
Polk also noted that R.P.'s body was covered with fresh “oval-
shaped” marks with dots. R.P. told her that “Daddy hurt,” but Polk
did not ask R.P. any questions at that time. Polk asked EMS to
transport R.P. to the DSS office, and she asked the police to
escort defendant to the DSS office. As the ambulance was driving
away, R.P. stated, “Daddy gone” and “Daddy hurt.”
At the DSS office, Polk gave R.P. some crackers, and based on
the way he quickly devoured the crackers, she determined he was
hungry and purchased some food for him. She stated that “he just
took the food, he just grabbed it and shoved it in his mouth.”
Subsequently, Polk took the food away from R.P. and “g[a]ve it to
him [in] smaller pieces so that he could eat that.” Meanwhile,
Polk examined the clothes that had been removed from R.P. She
discovered vomit and blood on the clothes, and she noted that the
clothes were wet and that “[h]is socks were dirty, his tennis shoes
were dirty, his clothes were dirty, and he stunk.”
At the DSS office, Mary Kendall (“Kendall”) interviewed
defendant. During the interview, defendant was uncooperative and
mercurial, and he reeked of marijuana. Defendant denied knowledgeof any of R.P.'s injuries except for the forehead injury, which
defendant stated was caused when a table fell on R.P. Kendall
noted that defendant “became frustrated in describing the table,
cursed [Kendall], stated that he could do to his child whatever he
wanted to and that [DSS] couldn't tell him how to discipline his
child.” Defendant's story regarding the table varied during the
interview; defendant told Kendall at one point that the table had
fallen on the child the night before, but he also stated that the
incident happened “days ago” and even “weeks ago.” Defendant also
stated that R.P. had fallen off the porch, and at various points
during the interview, defendant laughed and giggled. Throughout
the interview, defendant repeatedly denied injuring R.P.
R.P. was taken to the emergency department at Anson County
Hospital, and Carolyn Tucker (“Tucker”), a nurse at the hospital,
attended to R.P. Tucker testified as to R.P.'s injuries, and she
marked the injuries on thirteen photographs. She described the
“distinctive” and “consistent pattern” of bruising on R.P.'s body,
especially his buttocks and legs. In total, the nursing record
noted thirty-five body parts where pain or injury could be found.
On 18 February 2005, R.P. was placed in foster care in the
home of Audrey and Darin Allen. The first night R.P. was in the
Allens' home, R.P. would not sleep by himself, so the Allens
allowed him to sleep in their bed. However, R.P. frequently awoke
from nightmares, screaming, crying, and pleading not to be hurt.
The Allens noted that R.P. slept on his stomach with his hands
covering his back side, and he also kept his hands behind his backwhen he played. The Allens also described how R.P. would “tense
up” in situations when he thought he may get hurt. For example,
Audrey Allen testified,
[W]e had a birthday party for another child in
the house, and adults were standing around the
table, we put a candle in the birthday cake,
and we went to light the candle, and his
little hands went up like this, and he started
screaming hot, hot, I mean he was jerking,
jerking, jerking and screaming. And he got
down off the chair and he crawled up under the
table. And he was just screaming, just
screaming, you know, hot, hot.
Christine Mills (“Mills”) of DSS interviewed both R.P.'s
mother, Lauren P. (“Lauren”), and defendant. When Mills informed
them that she would first speak with Lauren alone, defendant became
agitated and stated that he did not understand why Mills needed to
speak with Lauren alone. When Mills' interview with Lauren
concluded, Mills watched as Lauren went to the car to ask defendant
to come inside. Mills, however, became concerned for Lauren's
safety when she “could tell by [defendant's] body language and his
facial expression that he was angry. He appeared to be yelling.
He was leaning in towards [Lauren] and his face looked angry, his
eyebrows were knit . . . .” Defendant yelled at Mills and demanded
“to know what the heck we had been talking about for so long, what
possibly we could have been talking about for three hours.”
During Mills' interview with defendant, defendant admitted
that he had paddled R.P. with “a plastic shallow ladle with holes
to strain food.” Defendant clarified that he had hit R.P. with the
ladle three times. Defendant explained that he paddled R.P. when
R.P. would attempt to play with electrical outlets after beingwarned not to do so by defendant. Defendant further explained how
the play table had fallen on R.P. when he was attempting to install
legs on the table. Defendant was not certain on what date this had
occurred, but he estimated that the incident had happened on 10 or
11 February 2005. Despite the fact that R.P.'s injuries still
appeared serious a week later when the police, EMS, and DSS
encountered the child on 17 February 2005, defendant explained that
he did not take R.P. to the hospital because “he knew that if he
taken [R.P.] to the hospital to the emergency department for his
forehead that he would have had to just sit there for a few hours
and wait to be told that it was nothing and to go home.”
On 6 June 2005, defendant was indicted for felony child abuse
inflicting serious injury, and on 7 December 2005, the jury found
defendant guilty of the indicted offense. The trial court sentenced
defendant as a prior record level III offender to a minimum of
thirty-four months imprisonment with a corresponding maximum of
fifty months, and defendant gave notice of appeal in open court.
As a preliminary matter, we note that defense counsel failed
to sign his name at the conclusion of defendant's brief. Rule
28(b) of the North Carolina Rules of Appellate Procedure expressly
requires that an appellant's brief contain “[i]dentification of
counsel by signature.” N.C. R. App. P. 28(b)(8) (2006).
Nevertheless, to prevent manifest injustice, we choose not to
strike defendant's brief. See N.C. R. App. P. 2 (2006).
On appeal, defendant first contends that the trial court erred
in denying his motion to dismiss the charge at the close of theevidence. Defendant, however, has waived his right to appellate
review of this issue.
Pursuant to North Carolina General Statutes, section 15A-1227,
(a) A motion for dismissal for insufficiency
of the evidence to sustain a conviction may be
made at the following times:
(1) Upon close of the State's
evidence.
(2) Upon close of all the evidence.
(3) After return of a verdict of
guilty and before entry of judgment.
(4) After discharge of the jury
without a verdict and before the end
of the session.
(b) Failure to make the motion at the close of
the State's evidence or after all the evidence
is not a bar to making the motion at a later
time as provided in subsection (a).
(c) The judge must rule on a motion to dismiss
for insufficiency of the evidence before the
trial may proceed.
N.C. Gen. Stat. . 15A-1227 (2005). As this Court has held, a
“[d]efendant's failure to comply with Rule 10(b) by failing to
renew his Motion to Dismiss at the close of all evidence mandates
a dismissal of this appeal.” State v. Buchanan, 170 N.C. App. 692,
693, 613 S.E.2d 356, 356 (2005); see also State v. Hinnant, 131
N.C. App. 591, 596.97, 508 S.E.2d 537, 540 (1998), aff'd in part,
rev'd in part on other grounds, 351 N.C. 277, 523 S.E.2d 663
(2000). Additionally, as expressly provided by statute, the trial
court must rule on a motion to dismiss, see N.C. Gen. Stat. . 15A-
1227(c) (2005), and Rule 10(b)(1) of the North Carolina Rules of
Appellate Procedure provides that “[i]n order to preserve aquestion for appellate review, a party must . . . obtain a ruling
upon the party's request, objection or motion.” N.C. R. App. P.
10(b)(1) (2006).
Here, defendant's motion to dismiss at the close of State's
evidence was denied. Although defendant contends in his brief that
the trial court erred in denying his motion to dismiss made at the
close of all the evidence, defendant, in fact, failed to renew his
motion to dismiss at the close of all the evidence. During the
charge conference, defense counsel requested a certain jury
instruction based on issues raised during the hearing on
defendant's earlier motion to dismiss. Referring to the motion to
dismiss, defense counsel stated:
I mean as Your Honor has said in the motion,
don't forget to remind me to renew that for
the record here, but anyway, Your Honor said
in the motion we've got two things here, but
if the State's going to talk about the head
injuries, the injuries from the falling table,
then that Instruction definitely should be
given here.
(Emphasis added). Defense counsel, however, did not renew that
motion to dismiss, and it was not the responsibility of the trial
court to remind defense counsel to do so. After the trial court
sentenced defendant, defense counsel moved to dismiss stating, “It
occurred to me that at the conclusion of the Defendant's evidence
yesterday I failed to renew my Motion to Dismiss. I would like to
enter that Motion without any further argument at this time for the
purposes of the appellate record.” The trial court permitted
defense counsel's request stating, “The Court will allow him to
reopen the case in chief for the purpose of [defense counsel]lodging, renewing his Motion to Dismiss the Case at the Conclusion
of the All the Evidence.” The court, however, did not rule on the
motion to dismiss. Defendant's failure to renew the motion to
dismiss until after defendant was sentenced, combined with the
trial court's failure to rule on the motion, waives defendant's
right to appellate review of this issue. See Buchanan, 170 N.C.
App. at 693, 613 S.E.2d at 356; Hinnant, 131 N.C. App. at 596.97,
508 S.E.2d at 540; N.C. R. App. P. 10(b)(1) (2006).
Defendant next contends that the trial court erred by
accepting the verdict and entering judgment when there was a fatal
variance between the indictment and the evidence. We disagree.
“In North Carolina, it is the settled rule that the evidence
in a criminal case must correspond with the allegations of the
indictment which are essential and material to charge the offense.”
State v. Simmons, 57 N.C. App. 548, 551, 291 S.E.2d 815, 817 (1982)
(internal quotation marks, alteration, and citation omitted). In
the instant case, the indictment provided that on 17 February 2005,
defendant
[u]nlawfully, willfully and feloniously did
intentionally commit an assault that resulted
in serious physical injury[ _] severe bruising
to the head, face, torso, arms, buttocks,
scrotum, and legs; burns to the ears, lip, and
face; and large hematoma to the forehead [_]
on [R.P.], who was two years old and thus
under 16 years of age. At the time the
defendant inflicted the injury the defendant
was providing care for the child as a person
who lives with the child's mother as a
boyfriend.
Defendant contends that the State's evidence merely showed “that
the injuries sustained by the child had been inflicted by theaccidental falling of a table that struck R.P.'s head and by the
disciplining of the child on the buttocks only.” Defendant,
therefore, argues that the evidence contradicts the allegations in
the indictment. The State, however, is correct that “[t]his is a
woefully inadequate recitation of the evidence.” The evidence
presented before the trial court showed that R.P.'s body was
covered in marks and bruises. His back, chest, arms, hands,
stomach, buttocks, legs, and feet bore marks of different colors,
which in turn indicated that the age of the injuries varied. Both
of his eyes were black; there were bite marks near his right eye;
and there was dried blood inside his left ear. There also were
fresh cigarette burns on his right ear and around his mouth. In
total, the nursing record, including thirteen photographs, noted
thirty-five injured body parts. Although defendant stated that a
table fell on R.P. and admitted to hitting R.P. three times with a
ladle, such an explanation cannot account for the systemic injuries
of varying degrees and ages on R.P.'s body. Defendant's argument,
therefore, is without merit.
Defendant also contends that the State failed to offer
evidence at trial of the specific date of injury _ i.e., 17
February 2005 _ alleged in the indictment. As this Court has held,
however, “a variance which is not essential is not fatal to the
charged offense.” State v. Qualls, 130 N.C. App. 1, 8, 502 S.E.2d
31, 36 (1998), aff'd, 350 N.C. 56, 510 S.E.2d 376 (1999) (per
curiam). “All that is required to indict a defendant for felonious
child abuse is an allegation that the defendant was the parent orguardian of the victim, a child under the age of 16, and that the
defendant intentionally inflicted any serious injury upon the
child.” Id. (citing N.C. Gen. Stat. . 14-318.4(a) (1993)). “[I]f
an indictment contains an averment unnecessary to charge the
offense, such averment may be disregarded as inconsequential
surplusage.” State v. Grady, 136 N.C. App. 394, 396, 524 S.E.2d 75,
77, disc. rev. denied and appeal dismissed, 352 N.C. 152, 544
S.E.2d 232 (2000). The date of injury is not essential to a charge
of felonious child abuse. See State v. Burton, 114 N.C. App. 610,
612, 442 S.E.2d 384, 386 (1994) (holding that “'the date given in
the bill of indictment is not an essential element of the crime
charged and the fact that the crime was in fact committed on some
other date is not fatal.'” (quoting State v. Norris, 101 N.C. App.
144, 151, 398 S.E.2d 652, 656 (1990), disc. rev. denied, 328 N.C.
335, 402 S.E.2d 843 (1991))). Moreover, defendant has not argued
persuasively that any alleged uncertainty about the date of the
offense affected his ability to present an adequate defense. See
id. at 614, 442 S.E.2d at 386. Accordingly, this assignment of
error is overruled.
In his final argument, defendant argues that the trial court
committed error by failing to properly instruct the jury in a way
that would preserve the defendant's right to a unanimous verdict.
In Assignment of Error number 3 in the record on appeal,
defendant assigned error to “[t]he trial court's instructions to
the jury, on the grounds that they were fatally ambiguous and
thereby violated the defendant's right to an unanimous jury verdictunder the North Carolina Constitution, Art. 1, Sec. 24 and N.C.
Gen. Stat. Sec. 15A-1237(b)(2003).” Our Supreme Court has
clarified, however, that “constitutional error will not be
considered for the first time on appeal.” State v. Chapman, 359
N.C. 328, 366, 611 S.E.2d 794, 822 (2005). Defendant did not
object at trial on constitutional grounds to the jury instructions,
and thus, defendant has failed to preserve this alleged error for
appellate review. See id.
In his brief before this Court, defendant attempts to revive
Assignment of Error number 3 by contending that “[t]he trial court
committed plain error to the unfair prejudice of Marshall Darrell
Overby by failing to properly instruct the jury in a way that would
preserve the defendant's right to an unanimous verdict.” Defendant
failed to assign plain error in the record on appeal, however, and
this Court's review “is confined to a consideration of those
assignments of error set out in the record on appeal.” N.C. R. App.
P. 10(a) (2006). Accordingly, defendant's argument is not properly
before this Court. See State v. McNeil, 350 N.C. 657, 681, 518
S.E.2d 486, 501 (1999); see also State v. Williams, 153 N.C. App.
192, 196, 568 S.E.2d 890, 893 (2002); State v. Jones, 147 N.C. App.
527, 543, 556 S.E.2d 644, 654 (2001); N.C. R. App. P. 10(c)(4)
(2006) (noting that a question not preserved by objection at trial
may be made the basis of an assignment of error, provided that in
the assignment of error, “the judicial action questioned is
specifically and distinctly contended to amount to plain error.”).
Accordingly, defendant's assignment of error is dismissed. For the reasons discussed herein, we hold defendant's
conviction for felonious child abuse was free from error.
No Error.
Judges WYNN and STEELMAN concur.
Report per Rule 30(e).
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