Opinion
No. COA09-601.
Filed March 16, 2010.
Scotland County, No. 07 CRS 53038.
Appeal by defendant from judgment entered 6 November 2008 by Judge B. Craig Ellis in Scotland County Superior Court. Heard in the Court of Appeals 12 October 2009.
Attorney General Roy A. Cooper, III, by Assistant Attorney General Jane Rankin Thompson, for the State. James W. Carter, for defendant-appellant.
Marcus Anthony Graham ("defendant") appeals from the 6 November 2008 judgment entered following his conviction by a jury of one count of felony child abuse inflicting serious bodily injury. For the reasons set forth below, we hold no error.
On the evening of 9 October 2007, Laurinburg Police Officers Jeremy White ("Officer White") and Vic Torres ("Officer Torres") responded to a call concerning a young female child ("G.I.") who had been severely burned. The officers arrived at the home of Varya Ingram ("Ingram"), the victim's mother. Officer White stated that he needed to check the well-being of any children inside the home. Ingram consented to Officer White's entry into her home and led him to a bedroom located at the rear of the residence. Upon entering the bedroom, Officer White identified a female child, G.I., wrapped in nothing but a towel. G.I. appeared to have been crying recently. Officer White requested that Ingram remove the towel in order to inspect the child's body to determine whether she had been burned. After observing severe burns on the child's buttocks, genital area, inner and outer thighs, and tops of her feet, Officer White informed Ingram that the child required immediate medical attention and offered to provide an ambulance. Ingram said that a friend could drive her and G.I. to the hospital, and Officer White agreed to follow them. Upon arriving at the hospital, the doctor on call recommended that G.I. immediately be transported to the burn center at the University of North Carolina Hospital in Chapel Hill ("UNC Burn Center").
Laurinburg Police Captain Kimothy Monroe ("Captain Monroe") spoke with Ingram at the hospital and, based on the information he gathered from her, Captain Monroe intended to locate and question defendant.
On 12 October 2007, a detective went to Ingram's apartment and found defendant gathering his belongings and preparing to leave the apartment. Defendant was taken into custody, waived his Miranda rights, and agreed to an interview with Captain Monroe regarding the events concerning G.I. that occurred on 9 October 2007. Defendant's initial statement was that he had gone to Ingram's apartment around noon on 9 October 2007 but left to go to a friend's house. When defendant returned, he saw blisters on G.I.'s legs and went to get some ointment from a neighbor. Captain Monroe indicated that defendant's account was substantially inconsistent with the account Ingram previously had provided to him. Defendant then indicated that he wished to change his initial statement.
In defendant's subsequent statement, he stated that on 9 October 2007, Ingram left the apartment. While she was gone, G.I. defecated on herself. Defendant told G.I. to go to the bathroom to wash herself. Defendant accompanied her and ran the water until it was warm. The phone rang in the other room, and defendant left the bathroom to answer the phone, leaving the child alone in the bathtub. Defendant stated that he heard G.I. whining and, upon his return to the bathroom, defendant dried her off with a towel and saw "her skin open up with water blisters on her ankle."
Also on 9 October 2007, Laurinburg Police Detective Bob Woolard ("Detective Woolard") conducted an investigation of the bathtub and measured the water temperature of the water in the only bathroom in the apartment. When the water reached approximately two to three inches in depth, Detective Woolard took a reading of the water temperature and received a reading of 122 degrees Fahrenheit. Detective Woolard then waited until the bathtub was approximately six to seven inches deep and took another reading of the water temperature and received a reading of 132 degrees Fahrenheit.
At trial, an expert from the UNC Burn Center, Bruce Cairns, M.D. ("Dr. Cairns"), testified that G.I. was admitted to the UNC Burn Center on 10 October 2007. Upon his examination, Dr. Cairns determined that G.I. had burns on approximately fifteen percent of her body, including her buttocks, genitalia, extending into her vagina, both legs, thighs, and feet. Dr. Cairns further testified that the burns were "very deep" and consistent with "an intentional immersion burn." Dr. Cairns testified that, in his opinion, the burn pattern was such that it was "not possible for people to do this to themselves." Dr. Cairns explained that the "deep second degree burns" extended into the vagina and around the rectum, which is "a very sensitive area, which there is no more sensitive area than this, you're not gonna['] sit and allow this to happen." Further, "No one, no one, no adult, even the strongest [Navy] SEAL or Delta Force person can't [sic] do this to themselves. . . . [T]he primal instincts of pain . . . would prevent you from being able to create this to yourself." Dr. Cairns also testified that G.I. remained at the hospital for nearly a month, requiring multiple surgeries and skin grafts and, as a result of her injuries, she suffered from permanent discoloration and scarring.
Before trial, the court heard defendant's motion in limine to exclude evidence in response to the State's notice of intent to seek admission of convictions more than ten years old pursuant to North Carolina Rules of Evidence, Rule 609(b). The trial court reserved judgment until trial, when it could be determined whether defendant was going to testify. When defendant was called to testify, no one raised the issue of whether the convictions older than ten years old were admissible.
At trial, defendant testified on his own behalf. Defendant's testimony was substantially the same as the second statement he had given Captain Monroe on 12 October 2007. However, defendant admitted that, upon his return to the bathroom, he noticed that "the water had to have got[ten] hot" because the bathroom became filled with steam. During cross-examination, defendant was questioned, over objection, about five convictions for providing fictitious information to law enforcement officers, all of which were the subject of defendant's pre-trial motion in limine to exclude evidence.
Upon hearing all of the evidence, the trial court denied defendant's motion to dismiss the charge of felony child abuse inflicting serious bodily injury, a class C Felony. On 6 November 2008, the jury returned a verdict finding defendant guilty of felony child abuse inflicting serious bodily injury. Defendant was sentenced to imprisonment for a minimum of 151 months and a maximum of 191 months in the custody of the North Carolina Department of Correction. Defendant appeals.
Defendant first contends that the trial court erred by denying his motion to dismiss because the State failed to introduce substantial evidence of each element of the offense of felony child abuse inflicting serious bodily injury. We disagree.
When ruling on a motion to dismiss based upon insufficiency of the evidence, the trial court must determine whether the State has presented substantial evidence of each essential element of the offense. See State v. Barden, 356 N.C. 316, 351, 572 S.E.2d 108, 131 (2002). "Substantial evidence is that amount of relevant evidence necessary to persuade a rational juror to accept a conclusion." State v. Scott, 356 N.C. 591, 597, 573 S.E.2d 866, 869 (2002) (citation omitted). Furthermore, we must view the evidence in the light most favorable to the State, giving the State the benefit of all reasonable inferences which may be drawn from the evidence. Scott, 356 N.C. at 596, 573 S.E.2d at 869 (citing State v. Benson, 331 N.C. 537, 544, 417 S.E.2d 756, 761 (1992)). "'The test for sufficiency of the evidence is the same whether the evidence is direct or circumstantial or both.'" Id. (quoting State v. Bullard, 312 N.C. 129, 322 S.E.2d 370 (1984)). Furthermore, "[i]f the evidence presented is circumstantial, the court must consider whether a reasonable inference of defendant's guilt may be drawn from the circumstances." Id. (quoting State v. Barnes, 334 N.C. 67, 75, 430 S.E.2d 914, 918 (1993)). Once the court determines that a reasonable inference of defendant's guilt could be drawn from the evidence presented, then it is for the jury to determine whether the defendant is guilty beyond a reasonable doubt. Id. (citations omitted).
On 24 March 2008, defendant was indicted pursuant to North Carolina General Statutes, section 14-318.4(a3) for intentionally inflicting serious bodily injury to G.I. In relevant part, section 14-318.4(a3) provides:
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 C felony. . . .
N.C. Gen. Stat. § 14-318.4(a3) (2007).
In the instant case, defendant concedes that G.I. was a child under the age of sixteen and that he was providing supervision or care to her on 9 October 2007. Defendant further acknowledges that G.I. suffered serious injuries resulting in permanent discoloration and scarring of her skin. However, defendant contends that the State failed to present substantial evidence that the defendant "intentionally inflicted" the injuries upon G.I. We disagree.
In the case sub judice, the State offered the expert testimony of Dr. Cairns. Dr. Cairns testified that, on 10 October 2007, he personally examined G.I. at the UNC Burn Center in Chapel Hill. Dr. Cairns further testified that G.I.'s burns covered approximately fifteen percent of her body and "involved her buttocks, genitalia, [and] extend[ed] into her vagina[.]" During direct-examination, Dr. Cairns stated that it was his opinion that the cause of the injuries was consistent with an "intentional immersion" into "scalding water." Dr. Cairns further stated that "[i]t's not possible for [a person] to do this to themselves . . . the primal instincts of pain, because this is the most painful injury there is, would prevent you from being able to [inflict] this [upon] yourself." Dr. Cairns explained that, in order to cause burns such as those sustained by G.I., one would have to be immersed in the scalding water for approximately twenty to thirty seconds, or possibly as long as two and a half minutes. Defendant did not present an expert to rebut Dr. Cairns's testimony and only relied upon his own testimony that the water running from the faucet accidently caused the burns, a theory explicitly rejected by Dr. Cairns.
Defendant further relies upon State v. Campbell, 316 N.C. 168, 340 S.E.2d 474 (1986), a felonious child abuse case, in which the Supreme Court addressed the issue of whether the State had produced sufficient evidence of intent to withstand a motion to dismiss. See id. In Campbell, the victim suffered from severe first-, second-, and third-degree burns on her hands up to her wrists. Campbell, 316 N.C. at 173, 340 S.E.2d at 477. In addition, "[t]here were also circular bruises under Amanda's neck and on her right arm which would support a reasonable inference that they resulted from defendant grasping her so that he could hold her hands under the hot water in the bathtub." Id. Defendant in the instant case contends that the absence of any bruising on G.I.'s arms or wrists indicates that defendant did not hold her forcibly in the scalding hot water. We are not persuaded.
The Supreme Court previously stated that "[e]vidence in the record supporting a contrary inference is not determinative on a motion to dismiss." Scott, 356 N.C. at 598, 573 S.E.2d at 870 (citation omitted). In the instant case, viewing the evidence in the light most favorable to the State and, giving the State the benefit of all reasonable inferences which may be drawn from the evidence, we hold that the trial court did not err in denying defendant's motion for dismissal and properly submitted the question of guilt to the jury.
Next, defendant contends that the trial court erred by permitting the State to impeach defendant with convictions more than ten years old in violation of North Carolina Rules of Evidence, Rule 609(b). Defendant relies upon State v. Farris, 93 N.C. App. 757, 761, 379 S.E.2d 283, 285 (1989), for the proposition that criminal convictions more than ten years old are presumptively inadmissible under North Carolina Rules of Evidence, Rule 609(b). See id. Defendant also relies upon State v. Blankenship, 89 N.C. App. 465, 468, 366 S.E.2d 509, 511 (1988), and asserts that the trial court failed to make appropriate findings of fact justifying the use of the convictions older than ten years old. See id. However, defendant failed to preserve this issue for appellate review.
In the case sub judice, during cross-examination, defendant was asked a series of questions relating to his previous criminal convictions. Specifically, counsel for the State questioned defendant about any prior history of arrests for and convictions of giving false information to the police. After defendant admitted to a series of driving infractions, counsel for the State asked defendant whether "part of the driving violation is, when they pull you over, you give false names and other names; isn't that true, Mr. Graham, so you don't get charged?" At that point, defendant's trial counsel made a general objection, which the court overruled. Then, the following colloquy occurred:
Q: Well, Mr. Graham, five times in the past you've been convicted of giving false information to law enforcement, haven't you?
A: Can I explain?
Q: Absolutely.
A: All right. I don't deny the fact I been stopped when I had no business driving. I had no license. And I been stopped and in court for driving while license revoked and I have given another name, which is considered fictitious information to an officer.
Q: So, Mr. Graham, in your mind, that's a small thing isn't it? It wasn't a big deal, was it, lying about your name and giving somebody else's name?
This line of questioning continued without objection, and notwithstanding the general objection noted supra, defendant's counsel failed to make any objection with specificity as is required by North Carolina Rules of Appellate Procedure, Rule 10(b)(1). See N.C. R. App. P. 10(b)(1) (2007) (requiring that a party must make a timely objection and state the specific grounds for the party's desired ruling if the specific grounds were not apparent and that the complaining party must obtain a ruling on the objection).
In the instant case, defendant made a general objection after being asked a compound question with respect to the defendant's history of providing fictitious names and information to law enforcement officials in order to avoid criminal charges. It is unclear from the record what the specific grounds for the objection were. It is not the duty of this Court to postulate the various grounds for counsel's objection. Furthermore, defendant's objection was overruled without any further action. As the line of questioning reached the convictions that were the subject matter of defendant's motion in limine, the record is completely devoid of any further objection from defendant. It is well-established that a "'motion in limine is insufficient to preserve for appeal the question of the admissibility of evidence if the defendant fails to further object to that evidence at the time it is offered at trial.'" State v. Muhammad, 186 N.C. App. 355, 362, 651 S.E.2d 569, 575-76 (2007) (quoting State v. Tutt, 171 N.C. App. 518, 520, 615 S.E.2d 688, 690 (2005)). Furthermore, we note that defendant does not allege plain error on appeal. See N.C. R. App. P. 10(c)(4) (2007). Accordingly, we hold that defendant's general objection at the outset of the questioning is insufficient to preserve the question for appellate review.
Defendant next contends that the trial court erred by sentencing defendant as a prior record level V offender, and that the evidence does not support defendant's current sentence based on a prior record level of V. We disagree.
Our standard of review is "whether [the] sentence is supported by evidence introduced at the trial and sentencing hearing." State v. Deese, 127 N.C. App. 536, 540, 491 S.E.2d 682, 685 (1997). The State correctly points out that defendant's counsel and the prosecutor both signed the written stipulation portion of the AOC-CR-600 sentencing worksheet. Furthermore, at sentencing, defendant's trial counsel stipulated that the prior record level worksheet showed "[seventeen] prior record points, making him prior record level [V] for sentencing purposes."
The State relies upon State v. Scott, 180 N.C. App. 462, 465-66, 637 S.E.2d 292, 294 (2006), disc. rev. denied, 361 N.C. 367, 644 S.E.2d 560 (2007), cert. denied, ___ N.C. ___, ___ S.E.2d ___ (2009), which explains that [t]he case law in this State is clear. Defendant, through counsel, made unequivocal stipulation concerning defendant's prior convictions and prior record level. See [ State v.] Alexander, 359 N.C. [824,] 828, 616 S.E.2d [914,] 917 [(2005)]. The record reveals that defendant did not stipulate to one charge of indecent liberties shown on the worksheet, but immediately thereafter his counsel stipulated to his prior record level. The record in this case does not contain the second sheet of either of the two worksheets signed by the trial judge. These are the sheets that would contain a listing of defendant's convictions and the dates of the convictions. Without this information, we are required to presume that the trial court was correct in determining the sentencing level of defendant. See State v. Fennell, 307 N.C. 258, 262, 297 S.E.2d 393, 396 (1982). It is incumbent upon the defendant to present a complete record to the appellate court which would allow it to review all errors presented by the defendant. State v. Milby, 302 N.C. 137, 141, 273 S.E.2d 716, 719 (1981).
Accordingly, we are bound to hold that defendant's assignment of error is without merit. See In re Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989) ("Where a panel of the Court of Appeals has decided the same issue, albeit in a different case, a subsequent panel of the same court is bound by that precedent, unless it has been overturned by a higher court.").
For the foregoing reasons, we hold that (1) the State presented substantial evidence at trial as to each element of felony child abuse inflicting serious injury and, therefore, the trial court did not err by denying defendant's motion for dismissal; (2) defendant failed to make an objection stating the specific grounds for that objection and, thus, failed to preserve the question for appellate review; and (3) the trial court did not err by sentencing defendant as an habitual felon with a prior record level of V.
No error.
Chief Judge MARTIN and Judge ERVIN concur.
Report per Rule 30(e).