Opinion
No. COA14–481.
2014-12-16
STATE of North Carolina v. Corey JOHNSON.
Roy Cooper, Attorney General, by Natalie Whiteman Bacon, Assistant Attorney General, for the State.Staples S. Hughes, Appellate Defender, by Anne M. Gomez, Assistant Appellate Defender, for defendant-appellant.
Appeal by defendant from judgment entered 6 September 2013 by Judge James W. Morgan in Mecklenburg County Superior Court. Heard in the Court of Appeals 23 September 2014. Roy Cooper, Attorney General, by Natalie Whiteman Bacon, Assistant Attorney General, for the State. Staples S. Hughes, Appellate Defender, by Anne M. Gomez, Assistant Appellate Defender, for defendant-appellant.
DAVIS, Judge.
Corey Johnson (“Defendant”) appeals from his conviction of intentional child abuse inflicting serious bodily injury. On appeal, he contends that the trial court erred in (1) denying his motion to dismiss; (2) failing to intervene ex mero motu during the State's closing argument; and (3) allowing a witness for the State to offer speculative testimony concerning Defendant's motives. After careful review, we conclude that Defendant received a fair trial free from prejudicial error.
Factual Background
The State presented evidence at trial tending to establish the following facts: Ben is the son of Defendant and Tyreather Ingram (“Ingram”) and was approximately 15 months old at the time of the events giving rise to this appeal. Defendant and Ingram were not married and did not live together. At the request of Ingram, Ben stayed overnight with Defendant for the first time at Defendant's home in Charlotte, North Carolina from 13 December 2011 to 14 December 2011. He stayed overnight with Defendant for the second time between 18 December 2011 and 19 December 2011.
The pseudonym “Ben” is used throughout this opinion to protect the privacy of the minor child.
While on his way to drop Ben off at Ingram's residence on 19 December 2011, Defendant told Ingram over the telephone that Ben had fallen off a pull-out bed during the overnight visit. In response to Ingram's question whether Ben was “okay,” Defendant responded affirmatively.
Defendant arrived with Ben at Ingram's home in Monroe, North Carolina at approximately 3:00 p.m. As Ingram was taking Ben out of his car seat, Ben vomited. Defendant then took Ben upstairs and played with him for several minutes by tossing him up in the air and flipping him upside down. When Ingram came into the room, Defendant set Ben down and Ben proceeded to fall forward face-first onto the floor.
Ingram told Defendant that “something was wrong with [Ben].” Defendant put Ben onto a bed and Ingram observed that “[Ben] was just laying there” and that “[Ben's] eyes were rolling in the back of his head ... and he turned cold.” At this point Defendant “ran out the door[,]” stating that “he had to get an oil change.” Ingram—believing that something was seriously wrong with Ben—attempted to call Defendant several times before finally reaching him. Upon informing Defendant of her concerns as to Ben's well-being, Defendant told Ingram to “put a cold rag on [Ben's] forehead.”
After this conversation with Defendant, Ingram called her friend, Monique Davis (“Davis”), a nurse. After Ingram explained what had happened, Davis told Ingram that Ben needed immediate medical attention. Davis then contacted her sister who was able to pick up Ingram and Ben in her car and drive them to Carolinas Medical Center–Monroe (“CMC–Monroe”).
Ben was admitted to the emergency room at CMC–Monroe at 5:26 p.m. While Ben was receiving medical attention, Defendant arrived at CMC–Monroe. Medical personnel at CMC–Monroe ultimately determined that Ben needed to be airlifted to Carolinas Medical Center–Levine (“CMC–Levine”) for additional emergency treatment.
Ben was admitted to CMC–Levine at 7:08 p.m. Dr. Otwell Timmons (“Dr.Timmons”), a board-certified specialist in pediatric critical care, was one of Ben's treating physicians. Based upon Dr. Timmons' determination that Ben's injuries were non-accidental, law enforcement officers were contacted in accordance with hospital policy. Detective Shannon Huntley (“Detective Huntley”) with the Monroe Police Department's Special Victims Unit responded along with Detective Jenkins and Sergeant Mike Smith. They arrived at CMC–Levine shortly after midnight. Detective Huntley interviewed and took statements from both Defendant and Ingram. Based upon these interviews, Detective Huntley determined that the only people who had access to Ben between 18 December 2011 and 19 December 2011 were Defendant and Ingram.
On 9 January 2012, Defendant was indicted on (1) one count of intentional child abuse inflicting serious bodily injury; and (2) one count of intentional child abuse inflicting serious physical injury. A jury trial was held in Mecklenburg County Superior Court on 3 September 2013.
At trial, Dr. Timmons was tendered as an expert in pediatric critical care by the State. Dr. Timmons testified that Ben had suffered a left subdural hematoma to the front left side of his head. This injury ultimately caused Ben to suffer a stroke. He further indicated that Ben had suffered an abdominal injury resulting from blunt force trauma which caused the separation of the outer membrane of his intestines from the major portion of his intestines. Additionally, Dr. Timmons stated that Ben had suffered bruises to one of his kidneys and his pancreas, along with additional bruising elsewhere on his body, including his forehead.
Dr. Timmons diagnosed the subdural hematoma and abdominal injuries suffered by Ben as being the result of non-accidental trauma. He testified that the type of subdural hematoma Ben suffered could occur either by virtue of an impact or from violent shaking. Dr. Timmons opined that based on his examination of Ben, there was evidence of both impact—evidenced by the bruising on Ben's forehead—as well as violent shaking—evidenced by the results of an MRI performed on Ben's neck tending to show that he had suffered whiplash. He further expressed the opinion that Ben's abdominal injuries were similarly caused by non-accidental trauma.
[A]s far as the cause of injury to his abdomen, that is blunt force. There was nothing that penetrated his abdomen. It was a significant blunt force. It was a blunt force by something that was small enough to invade the space of his abdominal cavity, meaning it could not have been a broad surface like a floor that would have been absorbed by his ribs, by his pelvis, by his abdominal muscles, and would have caused superficial injury. This was a deeper injury. It was blunt force by a smaller object that was able to project into the anatomy of the abdomen.
Q. By object, could that be hands or feet?
A. Could have been.
Dr. Timmons also stated his opinion that Ben's injuries could not have been caused by falling off of a bed.
When asked for his expert opinion on the timing of Ben's abdominal injuries, Dr. Timmons testified that “[t]he abdominal injury caused blood loss of the severity that it had to be within six hours of when [Ben] was seen in the emergency department in Monroe.” When asked about the timing of the head injuries suffered by Ben, Dr. Timmons further opined that “[t]he head issue conceivably could have occurred as early as 5:26 p.m. on December 18, but it's much less likely it would have occurred that long before his presentation to medical care. It's much more likely that it occurred at or after 11:26 a.m. on the 19th.”
The State introduced into evidence a document containing selected text messages sent between Defendant and Ingram during November and December 2011. The report was compiled by Detective Christopher Perez (“Detective Perez”) with the Charlotte–Mecklenburg Police Department's Digital Forensics Unit. At trial, Detective Perez testified that the document was derived from an exhaustive review of 279 pages of text messages sent between Defendant and Ingram. The State highlighted text messages from Defendant in which Defendant stated that “[h]e wanted to be the person who disciplined [Ben] because [Ingram] was just too soft.”
Q. Do you remember anything else that you and [Defendant] talked about over text messages about [Ben] hitting or what he said about disciplining [Ben]?
A. He said he was going to be hard on him.
Q. And what did you think that meant?
A. He was just going to swipe him.
Ingram further testified as follows:
Q. Does [Defendant] talk about disciplining [Ben] in those text messages?
A. Yes.
Q. What does he say?
A. Can I say the word?
Q. Uh-huh.
A. Called him a bad ass.
Q. And what did he say he was going to do?
A. He going [sic] to discipline him.
....
Q. Go to the second—or, sorry—the next page after that. Just read kind of the top couple of texts and see if that refreshes your recollection about your continued conversation over texts about this hitting issue and about what defendant said and what you said.
A. He said, “Okay, Miss Excuses, I'll just leave it at that, then.” And he does say “Nope” again.
It says, “[Defendant], I'm not making excuses. I'm telling you the truth. I said yes, but only a little, and I was telling you why. And I do know you're going to be hard on him, which I wish you would kinda take it easy, but I already know. But I was honest with you. I wasn't making up excuses.”
Q. Was that you talking to [Defendant]?
A. Yes.
Q. And what do you mean by you already know he's going to be hard on him?
A. When I said hard, I mean just whooping.
Q. Okay. What gave you the impression that [D]efendant wanted to be hard on [Ben]?
A. He put “hard” in all caps.
Q. I mean, had you all had discussions about this other than this document?
A. Yes. He was letting me know how the dad [sic] disciplined him and how he wanted to use some of that.
Q. And if you'll look on, there are some continued conversations about being hard on him. You can kind of read them and then just explain, after it refreshes your recollection, about what you all are talking about about disciplining him.
A. He said, “Hard on him really. Wow, his bad ass needs it. Thinks that you're too soft. He needs to learn to hit before he can learn when to hit. But do it your way.”
Q. Did he say anything else about hitting or what he was going to do or needed to do about [Ben] hitting?
A. One said, “At this point he is bad and it will only get worse. He needs to be broken hard. It may seem harsh, but you gotta let me do what I do.”
And I said, “And what's that?”
“Trust me, I went through this with Brie and when Dorian finally stepped back and let me handle the discipline, we have not had any problems.”
Q. And I'm not talking just specifically about the text, but what was he asking you to do as far as disciplining [Ben]?
A. He wanted to be the person that disciplined him for disciplinary act [sic]. He wanted to be the person.
Q. Why?
A. He always talked about how his dad disciplined him, so he wanted to be one [sic] that done it.
At the close of the State's evidence and again at the close of all the evidence, Defendant's trial counsel moved to dismiss both charges against Defendant. The trial court denied Defendant's motion to dismiss the intentional child abuse inflicting serious bodily injury charge and granted Defendant's motion to dismiss the charge of intentional child abuse inflicting serious physical injury.
The jury returned a verdict finding Defendant guilty of intentional child abuse inflicting serious bodily injury. Defendant was sentenced to 72–99 months imprisonment. Defendant gave notice of appeal in open court.
Analysis
I. Motion to Dismiss
Defendant's first argument is that the trial court erred in denying his motion to dismiss. We disagree.
Whether the evidence is sufficient to withstand a motion to dismiss is a question of law that is reviewed de novo on appeal. State v. Bagley, 183 N.C.App. 514, 523, 644 S.E.2d 615, 621 (2007). A defendant's motion to dismiss should be denied if there is substantial evidence of (1) each essential element of the offense charged; and (2) defendant being the perpetrator of the offense. State v. Scott, 356 N.C. 591, 595, 573 S.E.2d 866, 868 (2002). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” State v. Smith, 300 N.C. 71, 78–79, 265 S.E.2d 164, 169 (1980). In ruling on a motion to dismiss, the trial court is required to view all the evidence—whether direct, circumstantial, or both—in the light most favorable to the State, drawing all reasonable inferences from the evidence in favor of the State. State v. Kemmerlin, 356 N.C. 446, 473, 573 S.E.2d 870, 889 (2002). Contradictions and discrepancies are for the jury to resolve and do not warrant dismissal. State v. Powell, 299 N.C. 95, 99, 261 S.E.2d 114, 117 (1980).
N.C. Gen.Stat. § 14–318.4(a3) states that
[a] parent or any other person providing care to or supervision of a child less than 16 years of age who intentionally inflicts any serious bodily injury to the child or who intentionally commits an assault upon the child which results in any serious bodily injury to the child, or which results in permanent or protracted loss or impairment of any mental or emotional function of the child, is guilty of a Class B2 felony.
N.C. Gen.Stat. § 14–318.4(a3) (2013). The elements of N.C. Gen.Stat. § 14–318.4(a3) are that “(1) the defendant was the parent of the child; (2) the child had not reached [his] sixteenth birthday; and (3) the defendant intentionally and without justification or excuse inflicted serious bodily injury.” State v. Wilson, 181 N.C.App. 540, 543, 640 S.E.2d 403, 405–06 (2007). Defendant limits his argument on appeal to the sufficiency of the evidence regarding the third element of this offense. Specifically, Defendant asserts that because the State could not show that he had exclusive custody of Ben for the time period during which Ben suffered his injuries, the trial court should have dismissed the charge of intentional child abuse inflicting serious bodily injury.
Our Supreme Court addressed a set of facts in which a child victim's injuries were inflicted during a period of time when the victim was in the exclusive custody of the defendant in State v. Perdue, 320 N.C. 51, 357 S.E.2d 345 (1987). In Perdue, the Court held that “[w]here an adult has exclusive custody of a child for a period of time and during such time the child suffers injuries which are neither self-inflicted nor accidental, the evidence is sufficient to create an inference that the adult inflicted an injury .” Id. at 63, 357 S.E.2d at 353.
In State v. Qualls, 130 N.C.App. 1, 502 S.E.2d 31 (1998), aff'd per curiam, 350 N.C. 56, 510 S.E.2d 376 (1999), the defendant was charged with felonious child abuse and second-degree murder following the death of his two-month-old son. Although the defendant asserted that the State had failed to present sufficient evidence that the defendant had inflicted the child's injuries, we held that the trial court properly determined the evidence was sufficient to survive the defendant's motion to dismiss the charge of felonious child abuse. Id. at 8–9, 502 S.E.2d at 36. We noted that the evidence presented at trial established that “during both time periods in question, the [child's] mother worked for some portion of the day and was not in the home and that the defendant had sole and exclusive care and custody of the child for some periods of the day.” Id. at 9, 502 S.E.2d at 36 (internal brackets omitted and emphasis added).
Here, Defendant argues that because (1) the expert medical testimony was that Ben's head and abdominal injuries were likely inflicted between 11:26 a.m. and 5:26 p.m. on 19 December; and (2) Ingram had exclusive custody of Ben after Defendant returned him to Ingram at approximately 3:00 p.m. and then left her residence, Ingram had the opportunity to inflict the injuries on Ben. As a result, he contends, the evidence that he—rather than Ingram—inflicted the injuries was impermissibly speculative.
In making this argument, Defendant relies on State v. Reber, 71 N.C.App. 256, 321 S.E.2d 484 (1984), disc. review denied, 313 N.C. 335, 327 S.E.2d 897 (1985). In Reber, a mother left her child alone with the defendant-father for ten minutes while she went next door to use her neighbor's telephone. Id. at 257, 321 S.E.2d at 484. The child was seemingly fine when she left, but when she returned, the child was breathing erratically and one of her eyes was veering off to the side. Id. The child was taken to a hospital and found to have sustained non-accidental head trauma. Id. at 258–59, 321 S.E.2d at 485. Because the medical evidence presented at trial failed to establish the time period in which the injury had occurred, the time frame for the infliction of the injury could not be confined to the ten minute window of time during which the defendant was alone with the child. Id. at 260, 321 S.E.2d at 486. In holding that the trial court had erred in denying the defendant's motion to dismiss based on the speculative nature of the evidence against the defendant, this Court stated that
[i]f the injury had been a broken bone that was sound ten minutes earlier, the [State's] argument would be persuasive. But the injury in this instance, to blood vessels deep in the skull, was invisible, and the evidence does not show when or how it occurred. None of the doctors ... expressed the opinion that the injury that caused the hemorrhaging of the blood vessels happened during the brief interval while [the child's mother] was gone, or even that Sunday.
Id.
Reber is distinguishable from the present case. In Reber, the defendant was only alone with the victim for a short period of time, and there was no expert medical testimony as to when the injury had occurred. Here, conversely, medical testimony did in fact establish a specific time frame of approximately six hours during which Ben's injuries were likely suffered, and Ben was in Defendant's exclusive custody during the bulk of that time.
Furthermore, in Reber, there was no evidence presented of any violent propensity on the part of the defendant toward the victim. In the present case, conversely, evidence was offered in the form of text messages between Defendant and Ingram indicating Defendant's strong desire to impose physical discipline upon Ben, a 15–month–old child. Specifically, text messages sent between Defendant and Ingram that were introduced into evidence tended to show that Ben was going to be “broken hard” by Defendant and that Defendant believed Ingram was “too soft” on Ben. Testimony at trial regarding Defendant's statement to Ingram that Ben had fallen off of a pull-out bed at Defendant's apartment—refuted by expert medical testimony at trial as a viable explanation for Ben's injuries—gave rise to a rational inference that Defendant was attempting to provide a false explanation for the cause of Ben's injuries to avoid arousing Ingram's suspicion that he had inflicted abuse on Ben. In addition, Defendant tried to minimize Ingram's concerns over Ben's well-being after bringing him back to Ingram's residence, referring to him at one point as a “crybaby.” Furthermore, Defendant's sudden decision to “r[u]n out the door” of Ingram's residence to get an oil change for his car upon Ben exhibiting signs of serious injury could have been viewed by a rational juror as the behavior of a person fearing the consequences of having abused a child. Viewing the evidence in the light most favorable to the State and drawing all reasonable inferences in the State's favor, we are satisfied that the trial court did not err in denying Defendant's motion to dismiss.
II. State's Closing Argument
Defendant next argues that the trial court erred in failing to intervene ex mero motu during the State's closing argument. Defendant's argument focuses on the following statement made by the prosecutor during her closing argument dismissing the potential relevance of numerous text messages exchanged between Defendant and Ingram that were not introduced into evidence:
[Defense counsel] may argue to you about the text messages. There were 227 pages of text messages between Tyreather Ingram and this defendant. Absolutely. I could have admitted the report of 227 pages of text messages.
Did they have anything at all to do with this case? No.
Defendant argues that this statement “was grossly improper personal vouching for the relevance of the admitted text messages and the irrelevance of the text messages that were not admitted.” Defendant further asserts that “the prosecutor's opinion on the relevance of these messages short-circuited the defense impeachment of [Ingram] and of the prosecution's case.”
Initially, we note that Defendant did not object to the State's closing argument at trial.
The standard of review for assessing alleged improper closing arguments that fail to provoke timely objection from opposing counsel is whether the remarks were so grossly improper that the trial court committed reversible error by failing to intervene ex mero motu. Under this standard, only an extreme impropriety on the part of the prosecutor will compel this Court to hold that the trial judge abused his discretion in not recognizing and correcting ex mero motu an argument that defense counsel apparently did not believe was prejudicial when originally spoken. Defendant must show that the prosecutor's comments so infected the trial with unfairness that they rendered the conviction fundamentally unfair.
State v. Jones, ––– N.C.App. ––––, ––––, 752 S.E.2d 212, 215 (2013) (internal citations, quotation marks, and brackets omitted), disc. review denied, ––– N.C. ––––, 755 S.E.2d 616 (2014).
It is well established that “[s]tatements made during closing arguments to the jury are to be viewed in the context in which the remarks are made and the overall factual circumstances to which they make reference. As a general proposition, counsel are allowed wide latitude in closing arguments, so that a prosecutor is entitled to argue all reasonable inferences drawn from the facts contained in the record.” State v. Harris, ––– N.C.App. ––––, ––––, 763 S.E.2d 302, 311 (internal citations omitted).
However, “[d]uring closing argument an attorney may not express his personal belief as to the truth or falsity of the evidence.” State v. Phillips, 365 N.C. 103, 139, 711 S.E.2d 122, 147–48 (2011) (citation, quotation marks, and ellipses omitted), cert. denied, ––– U.S. ––––, 182 L.Ed.2d 176 (2012). Our Supreme Court has nevertheless held that where opposing counsel does not object to such arguments, the statements must “pervert or contaminate the trial to such an extent as to render the proceedings fundamentally unfair.” Id.
Even assuming, without deciding, that the prosecutor's statement in the present case was an improper expression of her personal opinion regarding the evidence, we believe Defendant has failed to show that the trial court committed reversible error by failing to intervene ex mero motu. See State v. Hartley, 212 N.C.App. 1, 17, 710 S.E.2d 385, 398–99 (holding that trial court did not commit reversible error by failing to intervene ex mero motu when prosecutor stated: “(1) ‘The defendant is trying to escape responsibility for the actions he did back on June 18, 2004. If that ... isn't murder, I don't know what is,’ and (2) ‘I know when to ask for the death penalty and when not to. This isn't the first case, it's the ten thousandth for me.’ “ (internal brackets omitted)), disc. review denied, 365 N.C. 339, 717 S.E.2d 383 (2011).
III. Testimony Concerning Defendant's Motives
Defendant's final argument on appeal is that the trial court erred by allowing Ingram to speculate during her testimony that the reason Defendant told her to tell law enforcement “that [Ben] was fine” during a conversation they had in June 2012 was “so he didn't have to go to prison.” On cross-examination, Ingram testified as follows:
Q. Do you recall sending a text message on June 30th, 2012, at 10:45 p.m., stating, ‘I'm aggravated about everything’?
A. Yes.
....
Q. So you did communicate in December 2012.
A. He would call me and wanted me to tell an investigator that [Ben] was fine.
Q. My question to you is, you did communicate via text in the summer of 2012.
A. All on that text right there.
On redirect examination, the following exchange then occurred between the prosecutor and Ingram:
Q. In [defense counsel's] cross-examination of you, you mentioned something about [Defendant] wanting you to tell investigators something, if investigators called you about this case. Can you tell us what that conversation was?
A. Yes. He wanted me to tell them that [Ben] was fine.
Q. What do you mean by that, like, when?
A. I guess when they was trying to find out what happened or whatever, he wanted me to tell them that [Ben] was fine so he didn't have to go to prison.
(Emphasis added.)
Because Defendant did not object to this portion of Ingram's testimony, we apply plain error review.
For error to constitute plain error, a defendant must demonstrate that a fundamental error occurred at trial. To show that an error was fundamental, a defendant must establish prejudice—that, after examination of the entire record, the error had a probable impact on the jury's finding that the defendant was guilty. Moreover, because plain error is to be applied cautiously and only in the exceptional case, the error will often be one that seriously affects the fairness, integrity or public reputation of judicial proceedings.
State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012) (internal citations, quotation marks, and brackets omitted).
Defendant cites State v. Turnage, 190 N.C.App. 123, 128, 660 S.E.2d 129, 133, rev'd in part, 362 N.C. 491, 666 S.E.2d 753 (2008), for the proposition that a witness may not give her opinion of a defendant's intentions on a particular occasion. In Turnage, an officer testifying as a lay witness at the defendant's trial on burglary-related charges stated that “ ‘we searched [the defendant] and found ... a screwdriver and a metal rod in his pockets indicating that he was just probably in the process of breaking into a residence. Those types of tools used [sic] to break into residences.’ “ Id. at 129, 660 S.E.2d at 133.
This Court held that “[the officer's] statements ... impermissibly invaded the province of the jury, as he drew inferences from the evidence—a task reserved for the jury—to express an opinion as to Defendant's guilt.” Id. Nevertheless, we concluded that the error in allowing this testimony did not rise to the level of plain error. Id. at 130, 660 S.E.2d at 134.
Assuming, without deciding, that the challenged portion of Ingram's testimony was inadmissible, we similarly conclude that any such error did not reach the level of plain error. While we agree with Defendant that “Ingram was in no better position than the jury to determine [Defendant's] intent” when he asked her to tell investigators that Ben was fine, we cannot conclude that Ingram's speculative statement had a probable impact on the jury's finding of guilt. Indeed, it is difficult to conceive of any rational inference—with or without the admission of the challenged testimony regarding Defendant's intent—that the jury could have drawn from Defendant's request to Ingram other than his concern about being subject to criminal prosecution for Ben's injuries. Thus, we cannot say that any error arising from the admission of this testimony was so fundamental that it had a probable impact on the jury's decision to convict Defendant.
Conclusion
For the reasons stated above, we conclude that Defendant received a fair trial free from prejudicial error.
NO PREJUDICIAL ERROR. Judges HUNTER, ROBERT C., and DILLON, concur.
Report per Rule 30(e).