Opinion
NO. COA11-1577
10-16-2012
STATE OF NORTH CAROLINA v. PHILLIP TORVIN HUBBARD, Defendant.
Attorney General Roy Cooper, by Assistant Attorney General R. Kirk Randleman, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender Benjamin Dowling-Sendor, for defendant-appellant.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
Onslow County
No. 07-CRS-53167
Appeal by defendant from judgment entered 9 November 2011 by Judge Phyllis M. Gorham in Onslow County Superior Court. Heard in the Court of Appeals 15 August 2012.
Attorney General Roy Cooper, by Assistant Attorney General R. Kirk Randleman, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate Defender Benjamin Dowling-Sendor, for defendant-appellant.
HUNTER, Robert C., Judge.
Defendant Phillip Hubbard appeals from judgment entered against him after a jury found him guilty of felony child abuse. On appeal, defendant argues: (1) the trial court erred by denying his motion to dismiss; (2) the jury instructions violated his right to a unanimous jury; and (3) the trial court committed plain error by instructing the jury it could find defendant guilty if it found his conduct was culpably negligent. After careful review, we find no error.
Background
Defendant was indicted on 10 May 2011, by superseding indictment, for felony child abuse and the aggravating factor that the victim was very young. The dates of offense were 8 March through 30 March 2007.
Though we recognize that the 10 May 2011 superseding indictment lists the offense defendant was indicted for violating as N.C. Gen. Stat. § 14-318.4(a3), felony child abuse inflicting serious bodily injury, the substantive text states "defendant . . . did intentionally inflict serious physical injury, multiple rib fractures, fractures of the left tibia, fracture of the clavicle, fracture of the skull, and subdural hematoma[.]" Thus, the substantive text comports with a violation of N.C. Gen. Stat. § 14-318.4(a), felony child abuse inflicting serious physical injury, and not N.C. Gen. Stat. § 14-318.4(a3). Moreover, the trial court instructed the jury on felony child abuse inflicting serious physical injury, and defendant was convicted of and sentenced for that offense.
The evidence at trial tended to establish the following: J.H. was born 6 March 2007. Tameika Washington ("Ms. Washington"), J.H.'s mother, contended that J.H. would cry "uncontrollably . . . all day[.]" Between the time J.H. was born and 30 March 2007, Ms. Washington lived in a four-bedroom trailer with defendant; her mother, Lanaette Edwards ("Ms. Edwards"); her sister, Jasmine Washington; her mother's boyfriend, David Durden; and her daughter, Lamiah Horne. Defendant and Ms. Washington were the primary caretakers of J.H.
The initials J.H. are used in both parties' briefs to identify the child.
On 30 March 2007, Ms. Washington left J.H. in defendant's care while she went to put a friend's daughter's hair in microbraids. She left the trailer between 9:00 a.m. and 10:00 a.m. At 3:00 p.m., defendant called and told Ms. Washington he was going to Western Union to pick up some money his mother was sending him. He reported J.H. had been "fussy, as usual[.]"
Defendant called Ms. Washington again at 9:00 p.m. and told her that J.H. had a bump on his head that looked like a mosquito bite. Defendant brought J.H. to the house where Ms. Washington was fixing the girl's hair; Ms. Washington testified when she touched J.H.'s head, it felt "mushy" and "watery." They took J.H. to the hospital. At the hospital, Ms. Washington was initially told that J.H. had a skull fracture and broken ribs. Defendant told Ms. Washington that he did not know what had happened to J.H. After Ms. Washington and defendant left the hospital and arrived back at the trailer, defendant told Ms. Washington and Ms. Edwards that when he was leaving earlier in the day to go to Western Union, he tripped on wires and fell down the porch stairs, landing on J.H. Defendant testified to these same events at trial.
Marlena Robinson ("Ms. Robinson"), an emergency duty social worker for Onslow County DSS, testified that she received a report of alleged child abuse from the hospital; the child was later identified as J.H. She was told that J.H. had a skull fracture, rib fractures, bleeding in the brain, and a possible broken leg. Ms. Washington told Ms. Robinson that defendant had been taking care of J.H. that day while she was gone. When Ms. Robinson originally asked defendant if he knew anything about J.H.'s injuries, he told her that J.H. was in Ms. Edwards care until 3:00 p.m. while he was running errands and denied any knowledge about how J.H. was injured. However, later, defendant told her that while he was walking down the steps of the trailer, he tripped and fell on top of J.H.
Detective Adam Stock ("Detective Stock"), the on-call-duty detective with the Onslow County Sheriff's Department, responded to a call from the hospital regarding a child with numerous physical injuries, later identified as J.H. After interviewing other individuals, Detective Stock testified that when he told defendant that J.H. had a skull fracture, defendant stated that he "fe[lt] so bad . . . 'cause -- 'cause I shouldn't have." When Detective Stock asked defendant how the injuries could have happened, defendant replied that "somebody may have got [sic] sick of his crying." Although defendant initially told Detective Stock he did not know how J.H. was injured, during a reinterview, defendant claimed that J.H. was injured when he tripped on a cable and fell down the front steps while they were leaving for Western Union at 8:00 p.m.
Dr. Elaine Cabinum-Foeller ("Dr. Cabinum-Foeller"), a pediatrician with extensive training in child abuse and the medical director of a children's advocacy center, testified at trial that she performed an inpatient consultation of J.H. at Pitt County Memorial Hospital. She stated that J.H. had the following injuries at the time of his consultation: a head injury (hematoma), a skull fracture, a clavicle fracture, 14 rib fractures, a spiral fracture of his tibia (shin bone), and a metaphyseal fracture of his tibia. With regard to the rib fractures, Dr. Cabinum-Foeller testified that the fractures occurred on at least two different occasions, based on the healing pattern of the bones, but she did not believe that any of his rib fractures were the result of defendant's alleged fall on 30 March 2007 because they appeared to be old injuries. However, she stated that they could have resulted from J.H. being squeezed. She noted that the skull fracture and hematoma appeared to be new injuries and that the alleged fall was a plausible or possible explanation for those injuries. Dr. Cabinum-Foeller testified that the tibia spiral fracture appeared to be a new injury that was caused by some sort of twisting on the bone as it was broken. She stated that it was plausible or possible that it resulted from the fall as defendant described. Additionally, she noted that the metaphyseal fracture in J.H.'s tibia was caused by some type of pull or jerk and that although she could not date the injury, she stated that it could not have resulted from the fall as defendant described. Finally, Dr. Cabinum-Foeller testified that the clavicle fracture appeared to be an old injury (approximately two to three weeks old) and, in her opinion, did not result from the fall alleged by defendant.
In summary, Dr. Cabinum-Foeller testified that the alleged fall, as defendant described it, was a plausible or possible explanation for the skull fracture, head injury, and spiral fracture of the tibia. In contrast, she stated that the fall could not explain the clavicle fracture, rib fractures, or metaphyseal fractures of the tibia. Furthermore, she noted that these injuries were "inconsistent with accidental trauma" given that no one was able to provide a history of any other accident that could account for J.H.'s injuries.
A few days after J.H. was admitted to the hospital, defendant voluntarily came to the Sheriff's Department to speak with Detective Stock. Defendant still contended that J.H.'s new injuries were caused when he fell down the porch stairs between 7:50 p.m. and 9:00 p.m.; however, he claimed that he may have blacked out with regard to the older injuries. Defendant told Detective Stock that, "[s]ometimes I squeeze [J.H.] too tight" because defendant wants him to "be quiet." Defendant also admitted that he had once "held [J.H.'s] leg" and either squeezed or twisted it. Defendant stated he had "about three blackouts with the baby." In his written statement to Detective Stock, defendant gave the following description of his blackouts:
whatever I'm doing, for a brief time, I do with too much strength. For instance, if an episode occurs while I'm rocking him, I might be squeezing him too tight, to the point it's hurting him . . . I might pick him up or put him down too hard. There has [sic] been times when [Ms. Washington] has told me, hey, don't grab him like that; or, baby, be careful. And there's times she wants to give me a break when I try to care for him at night or when I try to do it by myself, because she sees that I'm too stressed and I need to calm down.
On 14 July 2011, the jury found defendant guilty of felonious child abuse on or about the dates 8 March 2007 through 30 March 2007. The trial court entered an amended judgment and commitment form on 9 November 2011 and sentenced defendant to 34 to 50 months imprisonment. Defendant gave oral notice of appeal at trial.
Additional facts will be presented as needed to discuss specific issues on appeal.
Arguments
I. Motion to dismiss
Defendant first argues that the trial court erred in not granting his motion to dismiss because the State failed to provide substantial evidence defendant acted intentionally. Defendant makes a distinction between the injuries that occurred on 30 March 2007, as a result of defendant's alleged fall, and those that occurred prior to 30 March 2007, and he requests this Court consider them separately. We are not persuaded.
This Court reviews a trial court's denial of a motion to dismiss de novo. State v. Sanders, 208 N.C. App. 142, 144, 701 S.E.2d 380, 382 (2010). "This Court, under a de novo standard of review, considers the matter anew and freely substitutes its own judgment for that of the trial court." Id. (citing State v. Williams, 362 N.C. 628, 632-33, 669 S.E.2d 290, 294 (2008)).
"In making its determination, the trial court must consider all evidence admitted, whether competent or incompetent, in the light most favorable to the State, giving the State the benefit of every reasonable inference and resolving any contradictions in its favor." State v. Rose, 339 N.C. 172, 192, 451 S.E.2d 211, 223 (1994), cert. denied, 515 U.S. 1135, 132 L. Ed. 2d 818 (1995). The trial court must determine whether "there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of defendant's being the perpetrator of such 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). "To convict a defendant of felonious child abuse in violation of G.S. § 14-318.4(a), the State must prove (1) that defendant is the parent or caretaker of a child under the age of 16, (2) that defendant intentionally inflict[ed] . . . serious physical injury upon or to the child or . . . intentionally commit[ted] an assault upon the child, and (3) that the assault or infliction of injury resulted in serious physical injury." State v. Williams, 154 N.C. App. 176, 178, 571 S.E.2d 619, 621 (2002) (internal quotation marks omitted) (alterations in original).
Defendant urges this Court to consider the injuries as either "30 March injuries" or "injuries prior to 30 March"; however, defendant was only indicted for one count of felonious child abuse that occurred between 8 March and 30 March 2007. Thus, any one of J.H.'s injuries could support the grounds for defendant's conviction. Therefore, if our review finds the State presented substantial evidence that defendant intentionally inflicted any of J.H.'s injuries, the denial of defendant's motion to dismiss would be proper.
Here, taking the evidence in a light most favorable to the State, there was substantial evidence that defendant intentionally inflicted the rib fractures and metaphyseal fracture of the tibia. Detective Stock testified that defendant admitted to "squeez[ing] [J.H.] too tight," either squeezing or twisting J.H.'s leg, and blacking out while handling J.H. Furthermore, defendant claimed that he had handled J.H. too roughly in the past to the point where Ms. Washington felt she had to intervene. Dr. Cabinum-Foeller testified that J.H.'s rib fractures could have resulted from squeezing J.H., and she stated that the metaphyseal fracture could have resulted from a jerk or pull on J.H.'s leg. Based solely on defendant's own admissions, the State provided substantial evidence of felony child abuse. Therefore, the trial court did not err in denying defendant's motion to dismiss.
II. Violation of Defendant's Right to a Unanimous Verdict
Defendant next argues that the jury instructions violated his right to a unanimous jury verdict under Article I, Sec. 24 of the North Carolina Constitution. Specifically, defendant contends his right to a unanimous jury was violated because the jury heard evidence of multiple possible incidents of child abuse, but the trial court did not instruct the jurors that they could find defendant guilty only if they unanimously agreed he was guilty with respect to at least one particular act or incident. We disagree.
As an initial matter, we note that defendant did not object at trial to the jury instructions based on this alleged violation. However, our courts have recognized that "[a] defendant's failure to object at trial to a possible violation of his right to a unanimous jury verdict does not waive his right to appeal on the issue, and it may be raised for the first time on appeal." State v. Mueller, 184 N.C. App. 553, 575, 647 S.E.2d 440, 456 (2007). Accordingly, defendant's failure to raise the issue at trial does not bar review on appeal.
Under our state constitution, "[n]o person shall be convicted of any crime but by the unanimous verdict of a jury in open court." N.C. Const. art. I, § 24; see also N.C. Gen. Stat. § 15A-1237(b) (2011). "To convict a defendant, the jurors must unanimously agree that the State has proven beyond a reasonable doubt each and every essential element of the crime charged." State v. Jordan, 305 N.C. 274, 279, 287 S.E.2d 827, 831 (1982).
In support of his argument, defendant relies on his contention that the present case is analogous to and is "governed by" the case of State v. Lyons, 330 N.C. 298, 412 S.E.2d 308 (1991). In Lyons, the trial court instructed the jury that to find the defendant guilty of malicious assault in a secret manner with a deadly weapon with intent to kill, they must find the defendant "committed an assault and battery upon Douglas Jones and/or Preston Jones[.]" 330 N.C. at 302, 412 S.E.2d at 311. Our Supreme Court found that because the trial court submitted "two possible crimes for which [the] defendant could be separately convicted and punished[,]" the jury instructions were "fatally ambiguous" because the jury could have convicted the defendant without all twelve agreeing on which crime they were convicting him for. 330 N.C. at 306-07, 412 S.E.2d at 314.
In the present case, the trial court gave the jury the following instructions with regard to felony child abuse:
The defendant has been charged with felonious child abuse. For you to find the defendant guilty of this offense, the state must prove three things, beyond a reasonable doubt: First, that the defendant was a person providing care to the child. Second, that at that time, the child had not yet reached the child's 16th birthday. And third, that the defendant intentionally inflicted serious physical injury upon the child.Additionally, the trial court instructed the jury that, "[y]ou must be unanimous in your decision. All 12 jurors must agree." The verdict sheet stated that the jury could find defendant either not guilty or "guilty of felonious child abuse on or about the dates March 8, 2007 through March 30, 2007" but did not specify a particular act or incident.
Because the jury instructions are not expressly in the disjunctive, defendant's argument seems to rely on his contention that, similar to Lyons, the effect of the jury instructions was to allow the jury to convict without agreeing on which incident or act of child abuse defendant was guilty of. In other words, some jurors may have convicted defendant based on his admission that he squeezed J.H. too tightly whereas some may have convicted based on their belief that J.H.'s new injuries were not the result of an accident. Thus, the ambiguity arose because: (1) the jury heard evidence that J.H.'s injuries had to have occurred on at least two different occasions, meaning that at least two separate incidents led to the injuries; (2) the indictment and verdict sheet did not specify the alleged incident or act; and (3) the trial court did not tell the jurors that they had to agree with regard to which incident caused J.H.'s injuries.
Our Supreme Court has rejected the argument that disjunctive jury instructions for felony child abuse resulted in a nonunanimous verdict because the jury did not have to agree on the specific act upon which they based its verdict. State v. McCarroll, 336 N.C. 559, 567, 445 S.E.2d 18, 22 (1994). In McCarroll, the trial court charged the jury that it could find her guilty of child abuse based "on either fellatio by defendant McCarroll or cunnilingus by either of the defendants." Id. at 566, 445 S.E.2d at 22. While the defendant argued that her right to a unanimous jury verdict had been violated because the jurors were not required to "agree on the specific acts upon which they rested their verdict," our Supreme Court concluded that "[t]here was plenary evidence of illegal touching by the defendants to support the convictions." Id. at 566-67, 445 S.E.2d at 22. Because "[t]he court properly instructed the jury as to how to consider the evidence[,]" it "must assume that the jury followed the court's instruction"; therefore, the assignment of error was overruled. Id.
Here, like McCarroll, there was substantial evidence that defendant intentionally inflicted serious physical injuries on J.H. based on defendant's own admissions. Furthermore, although defendant asserted that some of J.H.'s serious physical injuries were the result of the alleged fall, other evidence, specifically the contradictions in defendant's version of events and defendant's own admitted intentional conduct, would support a reasonable belief that the newer injuries were also the result of intentional conduct and not the result of an accident. Thus, there was considerable evidence presented to support defendant's single charge of felony child abuse. Moreover, as in McCarroll, the trial court properly instructed the jury that they must agree and be unanimous, and we must also "assume that the jury followed the court's instructions." 336 N.C. at 567, 445 S.E.2d at 22. Thus, even when the jury instructions are expressly in the disjunctive, unlike the present case where defendant's jury unanimity violation is based on his contention that the effect of the instructions is disjunctive, McCarroll would require us to overrule defendant's argument.
We also note that defendant's argument has been rejected by our courts with regard to other offenses. In State v. Lawrence, 360 N.C. 368, 375, 627 S.E.2d 609, 613 (2006), our Supreme Court concluded that under State v. Hartness, 326 N.C. 561, 391 S.E.2d 177 (1990), and Lyons's interpretation of Hartness, a defendant may be "unanimously convicted of indecent liberties even if: (1) the jurors considered a higher number of incidents of immoral or indecent behavior than the number of counts charged, and (2) the indictments lacked specific details to identify the specific incidents." Furthermore, in State v. Brigman, 178 N.C. App. 78, 93-94, 632 S.E.2d 498, 508 (2006), this Court applied this same premise to a first-degree sexual offense. While the courts have yet to address this issue specifically in the context of felony child abuse, we believe these cases provide guidance and strengthen our conclusion that defendant's right was not violated even though there was evidence of more possible incidents of child abuse than defendant was charged with and the indictments did not specify a particular act or incident.
III. Plain Error - Jury Instructions
Finally, defendant argues that the trial court committed plain error in its jury instructions because they permitted the jury to convict defendant if it found he acted with culpable negligence. Defendant concedes this argument was rejected by this Court in State v. Oakman, 191 N.C. App. 796, 663 S.E.2d 453 (2008); however, defendant "raises this issue . . . as a preservation issue for possible future proceedings in the Supreme Court." In Oakman, 191 N.C. App. at 801, 663 S.E.2d at 457, this Court specifically stated that "culpable or criminal negligence may satisfy the intent requirement of felonious child abuse[,]" and we are bound by that decision. See In re Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989) (holding that "[w]here 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.") Therefore, defendant's argument is overruled.
Conclusion
Based on the foregoing reasons, we find no error.
No error.
Judges GEER and BEASLEY concur.
Report per Rule 30(e).