STATE OF NORTH CAROLINA
v. Lincoln County
No. 04 CRS 50515
RANDALL EUGENE ANDERSON
Attorney General Roy Cooper, by Assistant Attorney General
Alexandra M. Hightower, for the State.
Nora Henry Hargrove for Defendant-Appellant.
McGEE, Judge.
Defendant was found guilty of felonious child abuse by
intentional infliction of serious bodily injury in violation of
N.C. Gen. Stat. § 14-318.4(a3). Defendant stipulated to a Prior
Record Level III and received an active prison sentence of 116-149
months. By order dated 14 July 2005, our Court issued a writ of
certiorari for the purpose of reviewing the judgment of the trial
court.
The State's evidence at trial tended to show that T.A., the
daughter of Defendant and Bobbie Joe Anderson, sustained severe and
painful scald burns while in Defendant's care in their Denver,
North Carolina home on 17 February 2004. T.A. was three years oldat the time of Defendant's trial on 29 November 2004. As a result
of her injuries, T.A. was hospitalized for six weeks and underwent
a series of skin grafts which left her permanently scarred. She
required months of medication for pain, was unable to walk normally
for weeks after leaving the hospital, and continued to experience
decreased flexibility at the time of the trial.
T.A.'s maternal grandmother, Wanda Potter (Potter), testified
that she visited the Anderson's residence on the afternoon of 17
February 2004. After knocking on the door but receiving no answer,
she pushed open the door and called out to Defendant. Defendant
emerged from a bathroom holding a "pull-up" diaper and calmly told
Potter that T.A. had "burned herself." Potter walked into the
bathroom and saw T.A. lying on her back with burns on her "bottom
area" and "all . . . down [the] inside of her legs." Burned skin
was peeling from her legs.
Potter and Defendant drove T.A. to the emergency room.
Defendant told a hospital social worker, David Rogers (Rogers),
that he had left T.A. alone after giving her a bath because he had
to use the bathroom. After hearing her scream, he ran back into
T.A.'s bathroom and saw that the "shower head was squirting hot
water on her legs and pelvic region." Defendant told Rogers that
he ran cold water in the bathtub and placed T.A. in the water to
soothe her burns.
Dr. Donovan Thompson (Dr. Thompson) examined T.A. in the
emergency room, dressed her wounds, and gave her morphine for pain.
Dr. Thompson transferred T.A. by ambulance to the burn center atWake Forest University's Baptist Medical Center in Winston-Salem,
North Carolina "due to the nature of the burns and the extensive
area of the burning, especially in her perineum region[.]" Dr.
Thompson concluded that T.A.'s "burns were not consistent with the
story [he] was given by [Defendant]" and explained:
The story that I was given was that
[Defendant] had left the room for five to ten
minutes, had come back and the child had taken
the shower sprayer and turned on the hot water
. . . [while] standing in the tub. The nature
of the burns showed her feet to not be burned.
And I didn't really see any splash wounds,
secondary to a sprayer. [The burns] seemed
very demarcated and [left] a very definite
line on her legs.
Jane Olmstead (Olmstead), a social worker from the Forsyth
County Department of Social Services spoke to Defendant at Baptist
Medical Center on the night of 17 February 2004. Olmstead also
found T.A.'s injuries to be inconsistent with Defendant's
explanation. She noted that the burns on T.A. did not appear to
have come from a shower head because such a burn would leave
"splash marks, wigglets where the water or hot water has run
down[,]" rather than the "clear lines of demarcation" found on
T.A.'s burns.
Dr. Charles Turner (Dr. Turner), who performed T.A.'s skin
grafts at Baptist Medical Center, described her injuries as "deep
partial thickness burns to the . . . inner aspect and posterior
aspect of both legs and lower legs and the inner aspect of both
thighs, the buttocks and the labia[.]" Dr. Turner concluded that
T.A.'s injuries "had to be intentional[,]" based upon the clear
lines of demarcation between the burned and unburned area of herbody. In support of his conclusion, Dr. Turner noted that "having
accidental burns from something falling on you, you don't have
these nice little cut-off lines; there's a lot of splash; there is
run down." He noted that T.A. had no "splash type burns" that
would be consistent with an accidental scalding with a shower head.
Dr. Sara Sinal (Dr. Sinal), an expert in child abuse
evaluation and treatment at Wake Forest University School of
Medicine, testified that T.A. was burned in a "very unusual pattern
for a child who is scalded." Dr. Sinal observed that "it was just
the inner surface of [T.A.'s] legs and her genital and anal area
that were burned" and noted the "fairly sharp line of demarcation"
between the burned and unburned areas. Dr. Sinal characterized the
pattern of the burn as "a classic dunk scald pattern where children
are put in hot water often as punishment for something, often a
toileting accident in this age[d] child." She further explained
how the unburned area on T.A.'s buttocks was consistent with an
intentionally inflicted injury:
[Y]ou have a child who has a line of burn and
yet this area of the buttocks appears to be
spared and that's been called a classic donut
burn and it's felt to be compatible with the
child being forced against porcelain surface
such that the part of the surface of the
buttocks that's touching the porcelain part of
the tub or the surface of the tub doesn't get
burned but the area around it does get burned.
Dr. Sinal opined that the location of T.A.'s burns was consistent
with her having been forced into the tub with her legs behind her
so that the water reached only the affected areas. Based on the
inconsistency between the burn pattern she observed on T.A. andDefendant's account of T.A. spraying herself with a shower head,
Dr. Sinal concluded that the injury was intentionally inflicted.
Defendant testified that he left T.A. in the bathtub when he
went to use the bathroom. He heard her scream and ran back to her
as soon as he could. He found T.A. standing in the bathtub,
screaming. She was holding the shower head, which had water
trickling out it. The bathroom was full of steam. When he saw the
skin peeling from T.A.'s legs, he put her back in the tub and ran
what he thought was cold water onto her legs. However, he
discovered that the hot water tap was still turned on. When he
turned on the cold water, the hot water that remained in the shower
head hose "was still gushing out" of the shower head between T.A.'s
legs. Defendant attributed the pattern of T.A.'s burns to the hot
water that was already in the tub and the hot water that remained
in the shower head hose when he turned on the cold water. He
presented a diagram depicting how he had positioned T.A. in the tub
when he tried to cool her burns.
Defendant argues that the trial court committed plain error by
allowing Dr. Sinal to testify about statements made by Dr. Turner
and Dr. Lawless, expressing their concern that T.A. might have been
sexually abused. The transcript reflects the following exchange
between the prosecutor and Dr. Sinal regarding the circumstances of
her examination of T.A. on 27 February 2004:
Q. And what was it about what Dr. Turner had
observed that caused him to contact you or get
you involved in the case?
A. Well, he told me that this was a scald
burn and that the pattern of the burn wasconcerning to him for the possibility of child
abuse.
Q. And was there any aspect of his concern or
your concern when you got involved that dealt
with any type of sexual abuse?
A. At some point in time, there was a concern
about sexual abuse raised, I don't know what
exactly it was but he did ask me to come to
the operating room. I know he had asked Dr.
Lawless . . . to go to the operating room and
look at [T.A.'s] genital area and it was _
{T.A.] was so swollen then that Dr. Lawless
couldn't really tell whether there might be
sexual abuse or not. So he had asked me to
come to the operating room, that was on
February 27th. So I think that was about 12
days after [T.A.] had been hospitalized . . .
and so he wanted me to come down and look at
her genital area that day and I did that.
Q. And basically as a result of that, there
was a determination made that there was no
indication of any type of sexual abuse?
A. There was no physical evidence, in other
words, her exam was normal. Children can
certainly be sexually abused without there
being physical findings but we didn't really
have any indication of sexual abuse at that
time.
(emphasis added). Because Dr. Lawless did not testify and Dr.
Turner had been released from his subpoena, Defendant claims Dr.
Sinal's testimony referencing their hearsay statements violated his
Sixth Amendment right to confrontation under Crawford v.
Washington, 541 U.S. 36, 158 L. Ed. 2d 177 (2004).
Defendant concedes that he failed to object to Dr. Sinal's
testimony. Accordingly, our Court reviews the trial court's
admission of this evidence only for plain error under N.C.R. App.
P. 10(c)(4). "In order to prevail under the plain error rule,
[the] defendant must convince this Court that there was error andthat absent the error, the jury probably would have reached a
different verdict." State v. Thomas, 350 N.C. 315, 348, 514 S.E.2d
486, 506, cert. denied, Thomas v. North Carolina, 528 U.S. 1006,
145 L. Ed. 2d 388 (1999). Where a defendant offers no objection to
evidence at trial, he must show "there was no proper purpose for
which the evidence could be admitted." State v. Golphin, 352 N.C.
364, 440, 533 S.E.2d 168, 219 (2000), cert. denied, Golphin v.
North Carolina, 532 U.S. 931, 149 L. Ed. 2d 305 (2001).
Defendant first claims a violation of his constitutional right
to confrontation under Crawford. As noted above, however,
Defendant did not raise his constitutional claim at trial.
"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). Even assuming this claim is properly before us on plain
error review under N.C.R. App. P. 10(c)(4), it is without merit.
In Crawford, the Supreme Court held "[w]here testimonial
evidence is at issue, . . . the Sixth Amendment demands . . .
unavailability and a prior opportunity for cross-examination."
Crawford, 541 U.S. at 68, 158 L. Ed. 2d at 1374. In Davis v.
Washington, 547 U.S. __, __, 165 L. Ed. 2d. 224, 237 (2006), the
Supreme Court stated that statements are "testimonial when the
circumstances objectively indicate that there is no . . . ongoing
emergency, and that the primary purpose of the interrogation is to
establish or prove past events potentially relevant to later
criminal prosecution." Statements that are non-testimonial are
governed by the standard rules for admissibility under our Rules ofEvidence. See Crawford, 541 U.S. at 68, 158 L. Ed. 2d at 203; see
also State v. Ferebee, __ N.C. App. __, __, 630 S.E.2d 460, 462
(2006).
The statements exchanged by T.A.'s doctors were neither
elicited by police interrogation nor made in anticipation of a
criminal prosecution. Thus, the statements are non-testimonial and
do not implicate Crawford. See Ferebee, __ N.C. App. at __, 630
S.E.2d at 463 (holding that the exclamation "campus police officer,
stop" was non-testimonial); State v. Lawson, 173 N.C. App. 270,
275-76, 619 S.E.2d 410, 413-14 (2005), disc. review denied, 360
N.C. 293, 629 S.E.2d 276 (2006) (holding that statements made
during a private conversation outside the presence of any police
officers were non-testimonial). Defendant's constitutional claim
is without merit.
Equally without merit is Defendant's objection to Dr. Sinal's
testimony as inadmissible hearsay. It is well established that
"[o]ut-of-court statements that are offered for purposes other than
to prove the truth of the matter asserted are not considered
hearsay." State v. Gainey, 355 N.C. 73, 87, 558 S.E.2d 463, 473,
cert. denied, Gainey v. North Carolina, 537 U.S. 896, 154 L. Ed. 2d
165 (2002). "Specifically, statements are not hearsay if they are
made to explain the subsequent conduct of the person to whom the
statement was directed." Id. In this case, the statements of Drs.
Turner and Lawless were admissible to explain Dr. Sinal's
subsequent act of examining T.A. for signs of abuse. Inasmuch as
neither Dr. Turner nor Dr. Lawless asserted that sexual abuse hadoccurred, their statements cannot be said to have been offered for
the truth of any such assertion. See N.C. Gen. Stat. § 8C-1, Rule
801(c).
To the extent Defendant challenges the admission of the
doctors' statements as an abuse of the trial court's broad
discretion under N.C. Gen. Stat. § 8C-1, Rule 403, we find no
likelihood that the alleged error affected the outcome at trial.
Neither Dr. Turner nor Dr. Lawless opined that sexual abuse had
occurred. Dr. Sinal explained that T.A.'s injuries prevented her
fellow doctors from making an assessment, and that her own
examination revealed no indication of sexual abuse. Our review of
the trial transcript reveals that the State did not proceed on the
theory that Defendant had sexually abused T.A. The State's limited
evidence on the issue of Defendant's motive raised the possibility
that he scalded T.A. in response to a toileting accident. Dr.
Sinal characterized the pattern of T.A.'s burn as consistent with
those inflicted on children as punishment for such accidents.
T.A.'s mother testified that Defendant would sometimes "get upset"
and "[f]uss" at T.A. when she had an accident. She further
testified that Defendant "really had a physical aversion" to
changing dirty diapers which caused him to gag or vomit.
Therefore, we overrule this assignment of error.
The record on appeal includes additional assignments of error
not addressed by Defendant in his brief to this Court. We deem
them abandoned. N.C.R. App. P. 28(b)(6).
No error.
Chief Judge MARTIN and Judge HUNTER concur.
Report per Rule 30(e).
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