Opinion
No. COA15–255.
01-05-2016
STATE of North Carolina v. Dartanya Levon EATON.
Attorney General Roy Cooper, by Assistant Attorney General Joseph L. Hyde, for the State. Appellate Defender Staples S. Hughes, by Assistant Appellate Defender Andrew DeSimone, for defendant-appellant.
Attorney General Roy Cooper, by Assistant Attorney General Joseph L. Hyde, for the State.
Appellate Defender Staples S. Hughes, by Assistant Appellate Defender Andrew DeSimone, for defendant-appellant.
Opinion
Appeal by defendant from judgment entered 28 April 2014 by Judge Edwin G. Wilson in Forsyth County Superior Court. Heard in the Court of Appeals 9 September 2015.
McCULLOUGH, Judge.
Dartanya Levon Eaton (“defendant”) appeals from judgment entered upon his conviction for intentional child abuse inflicting serious bodily injury. For the following reasons, we find no error.
I. Background
Defendant was indicted by a Forsyth County Grand Jury on one count of felony child abuse inflicting serious bodily injury on 10 November 2008 and later for attaining the status of a habitual felon on 13 December 2010. Defendant's case first came on for trial in Forsyth County Superior Court on 7 March 2011 before the Honorable Anderson D. Cromer. At the conclusion of the trial, the jury returned a verdict finding defendant guilty of felonious child abuse inflicting serious bodily injury and found the aggravating factor that the victim was very young. The trial court then entered judgment sentencing defendant in the aggravated range to a term of 167 to 210 months imprisonment. Defendant appealed to this Court. On 20 March 2012, this Court issued an unpublished opinion granting defendant a new trial. State v. Eaton, 219 N.C.App. 648, 722 S .E.2d 797 (2012), disc. review denied, 366 N.C. 568, 738 S.E.2d 371 (2013).
Defendant's case came on for retrial in Forsyth County Superior Court on 21 April 2014 before the Honorable Edwin G. Wilson. The evidence on retrial tended to show that the felony child abuse inflicting serious bodily injury charge against defendant was the result of burns sustained by defendant's two-year-old son George on 7 June 2008 when defendant was watching George while George's mother was at work. The State's evidence tended to show that defendant became angry with George when George had an accident and defendant forced George into hot bath water, resulting in first- and second-degree burns to the lower half of George's body. Other children were home at the time. Sally, the mother's six-year-old daughter, testified that she heard defendant tell George to “shut up” and “sit down” despite George's cries that the water was too hot. Contrary to the State's evidence, defendant contended George's injuries were the result of an accident. Defendant's evidence tended to indicate that defendant started a bath for George and George climbed in the hot bath water on his own when defendant was away fetching cool water for the bath. Defendant's brother testified Sally was not home when he went by the house on the day George suffered the burns. Defendant's brother recalled that Sally was away from the house with George's mother and came home with George's mother later in the day. Various family members, members of law enforcement, and medical personnel testified during the retrial of defendant's case.
Pseudonyms are used to protect the identities of minors.
At the conclusion of all the evidence, the trial court instructed the jury on felonious child abuse inflicting serious bodily injury and the lesser included offenses of felony child abuse and misdemeanor child abuse. After deliberation, the jury returned a verdict finding defendant guilty of felony child abuse inflicting serious bodily injury. The trial then proceeded to the aggravating factors stage, during which the jury found the aggravating factor that George was very young. On 28 April 2014, the trial court entered judgment sentencing defendant in the aggravated range for a term of 167 to 210 months imprisonment with credit given for 1,236 days defendant had spent in confinement. Defendant gave notice of appeal in open court.
II. Discussion
On appeal, defendant raises various issues concerning the trial court's jury instructions and evidentiary rulings. We address defendant's arguments in order.
A. Jury Instructions
Defendant first raises issues with the trial court's jury instructions. “The prime purpose of a court's charge to the jury is the clarification of issues, the elimination of extraneous matters, and a declaration and an application of the law arising on the evidence.” State v. Cameron, 284 N.C. 165, 171, 200 S.E.2d 186, 191 (1973), cert. denied, 418 U.S. 905, 41 L.Ed.2d 1153 (1974). “[Arguments] challenging the trial court's decisions regarding jury instructions are reviewed de novo by this Court.” State v. Osorio, 196 N.C.App. 458, 466, 675 S.E.2d 144, 149 (2009). However, “[a] party may not make any portion of the jury charge or omission therefrom the basis of an issue presented on appeal unless the party objects thereto before the jury retires....” N.C. R.App. P. 10(a)(2) (2015); see also State v. McNeil, 350 N.C. 657, 691, 518 S.E.2d 486, 507 (1999), cert. denied, 529 U.S. 1024, 146 L.Ed.2d 321 (2000). “In criminal cases, an issue that was not preserved by objection noted at trial and that is not deemed preserved by rule or law without any such action nevertheless may be made the basis of an issue presented on appeal when the judicial action questioned is specifically and distinctly contended to amount to plain error.” N.C. R.App. P. 10(a)(4); see also State v. Goss, 361 N.C. 610, 622, 651 S.E.2d 867, 875 (2007), cert. denied, 555 U.S. 835, 172 L.Ed.2d 58 (2008). The North Carolina Supreme Court “has elected to review unpreserved issues for plain error when they involve ... errors in the judge's instructions to the jury[.]” State v. Gregory, 342 N.C. 580, 584, 467 S.E.2d 28, 31 (1996).
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 affect[s] 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 and quotation marks omitted).
Not Guilty Mandate
In the first issue on appeal, defendant contends the trial court erred by failing to instruct the jury to find defendant not guilty if it did not find, or had reasonable doubt as to, any element of felony child abuse inflicting serious bodily injury.
At the outset, we address whether this issue was preserved for appeal. Rule 10(a) of the North Carolina Rules of Appellate Procedure (“Appellate Rules”) provides in pertinent part as follows:
(2) Jury Instructions. A party may not make any portion of the jury charge or omission therefrom the basis of an issue presented on appeal unless the party objects thereto before the jury retires to consider its verdict, stating distinctly that to which objection is made and the grounds of the objection; provided that opportunity was given to the party to make the objection out of the hearing of the jury, and, on request of any party, out of the presence of the jury.
N.C. R.App. P. 10(a)(2).
Despite defendant's failure to object to the jury instructions issued, defendant contends this first issue was preserved for appellate review because the trial court indicated it would instruct the jury pursuant to N.C.P.I.—Crim. 239.57, which sets forth the elements for felonious child abuse inflicting serious bodily injury and concludes with a mandate to the jury that “[i]f you do not so find or have a reasonable doubt as to one or more of [the elements], it would be your duty to return a verdict of not guilty.” N.C.P.I.—Crim. 239.57 (2009). Relying on State v. Keel, 333 N.C. 52, 423 S.E.2d 458 (1992), and State v. McArthur, 186 N.C.App. 373, 651 S.E.2d 256 (2007), defendant asserts the trial court's indication that it would give the pattern instruction satisfied the requirements of Rule 10(a)(2) and preserved this first issue for review. We are not persuaded.
Upon review of Keel and McArthur, it is evident the present case is distinguishable. In each of those cases, either the State or the defendant made specific requests for pattern instructions which the trial courts agreed to give. Keel, 333 N .C. at 56, 423 S.E.2d at 461; McArthur, 186 N.C.App. at 375–76, 651 S.E.2d at 257. The trial courts in Keel and McArthur, however, subsequently failed to fully instruct pursuant to the pattern instructions requested. Keel, 333 N.C. at 57, 423 S.E.2d at 461; McArthur, 186 N.C.App. at 376, 651 S.E.2d at 258. Despite the defendants' failures to object to the instructions actually issued, the Supreme Court in Keel, and this Court in McArthur, held that issues concerning the jury instructions were preserved for appellate review. Keel, 333 N.C. at 56–57, 423 S.E .2d at 461 (“The State's request, approved by the defendant and agreed to by the trial court, satisfied the requirements of Rule 10(b)(2) of the [Appellate Rules] and preserved this question for review on appeal.”); McArthur, 186 N.C.App. at 376, 651 S.E.2d at 258 (“[O]nce the trial court agreed to provide the requested pattern instructions, defendant was not required to object to their alteration to preserve the issue for review.”); see also State v. Ross, 322 N.C. 261, 265, 367 S.E.2d 889, 891 (1988) (“[A] request for an instruction at the charge conference is sufficient compliance with the rule to warrant our full review on appeal where the requested instruction is subsequently promised but not given, notwithstanding any failure to bring the error to the trial judge's attention at the end of the instructions.”).
A review of the charge conference in this case reveals that there was never a request for the trial court to instruct pursuant to N.C.P.I.—Crim. 239.57 and the trial court never indicated that it would issue the pattern instruction. Instead, the trial court stated that the first option on the verdict sheet would be “guilty of felonious child abuse inflicting serious bodily injury[ ]” and then the trial court proceeded to read the jury instructions it intended to issue for the offense. The trial court addressed the State's requests for specific additions to the proposed instructions and thoroughly reviewed the instructions that it agreed to add. The trial court, before moving on to review the instructions for the lesser-included offenses, then stated, “[t]hat's 239.57[,]” indicating it had finished reviewing the instructions it intended to issue for felonious child abuse inflicting serious bodily injury. The trial court was very clear about the instructions it intended to issue in this case and never indicated it would issue the mandate at the end of N.C.P.I—Crim. 239.57.
Because there was never a request for the instruction that defendant now contends was erroneously omitted, and because defendant failed to object to the instructions issued, which the trial court fully detailed during the charge conference, we hold defendant did not preserve this first issue for appellate review. Consequently, we are limited to reviewing for plain error, which defendant asserts in the alternative.
In this case, the trial court issued general instructions to the jury and then explained to the jury as follows:
You're going to get a verdict sheet, and there are going to be four options on there: One, guilty of felonious child abuse inflicting serious bodily injury; or guilty of felonious child abuse; or guilty of misdemeanor child abuse; or not guilty.
After setting forth the possible verdicts, the court proceeded to issue instructions on each option in the order the jury was to consider the options.
For the first option, the court instructed on felonious child abuse inflicting serious bodily injury as follows:
The defendant has been charged with felonious child abuse inflicting serious bodily injury. 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 the parent of the child.
Second, that at that time the child had not reached the child's 16th birthday.
And, third, that the defendant intentionally inflicted a serious bodily injury to the child or intentionally assaulted the child which proximately resulted in serious bodily injury to the child.
A serious bodily injury is defined as a bodily injury that creates a substantial risk of death or that causes serious permanent disfigurement; coma; or permanent or protracted condition that causes extreme pain; or permanent or protracted loss or impairment of the function of any bodily member or organ; or that results in prolonged hospitalization.
Now, intent is a mental attitude seldom provable by direct evidence. It must ordinarily be proved by circumstances from which it may be inferred. You arrive at the intent of a person by such just and reasonable deductions from the circumstances proven as a reasonably prudent person would ordinarily draw therefrom.
Intent may be actual intent to inflict injury or culpable or criminal negligence from which such intent may be implied. “Culpable or criminal negligence” is defined as such recklessness or carelessness proximately resulting in injury as imports a thoughtless disregard of consequences or a heedless indifference to the safety and rights of others.
Now, when evidence has been offered that tends to show that the alleged assault was accidental and you find that the injury was, in fact, accidental, the defendant would not be guilty of any crime, even though his acts were responsible for the victim's injury.
An injury is accidental if it is unintentional, occurs during the course of lawful conduct and does not involve culpable negligence. Culpable negligence is such gross negligence or carelessness as imports a thoughtful disregard of consequences or a heedless indifference to the safety and rights of others.
When a defendant asserts that the victim's injury was a result of an accident, he is, in effect, denying the existence of those facts which the State must prove beyond a reasonable doubt in order to convict him. The burden is on the State to prove those essential facts and, in so doing, disprove the defendant's assertion of accidental injury.
After instructing on each element, the trial court instructed as follows:
The State must satisfy you beyond a reasonable doubt that the injury was not accidental before you may return a verdict of guilty. So if you find from the evidence beyond a reasonable doubt that on or about the alleged date, the defendant was the parent of the child, that the child had not reached the child's 16th birthday, and that the defendant intentionally inflicted a serious bodily injury to the child or intentionally assaulted the child, which proximately resulted in a serious bodily injury to the child, it would be your duty to return a verdict of guilty.
Or if you fail to find from a reasonable doubt that the injury to the victim was not accidental, it would be your duty to return a verdict of not guilty.
So the first thing—if—I'm sorry. It would not be your verdict to return a verdict of not guilty. You would then look and determine whether or not you thought the defendant was guilty of felonious child abuse. So the first decision to make is, is he guilty of felonious child abuse inflicting serious bodily injury? If you say “No” to that, then you turn your attention to whether or not he's guilty of felonious child abuse.
The trial court then instructed the jury on the lesser-included offense of felonious child abuse. Similar to the way the court concluded the instructions on felonious child abuse inflicting serious bodily injury and transitioned to the lesser-included offense of felonious child abuse, the court instructed the jury that if it found or had reasonable doubt as to one or more of the elements of felonious child abuse, the jury would consider the lesser-included offense of misdemeanor child abuse. The trial court then instructed on the lesser-included offense of misdemeanor child abuse and concluded the instructions on the offenses by explaining as follows:
If you do not so find or have a reasonable doubt as to one or more of these things, it would be your duty to return a verdict of not guilty. Or on either the felony child abuse or the misdemeanor child abuse, if you fail to find beyond a reasonable doubt that the injury to the victim was not accidental, it would be your duty to return a verdict of not guilty.
So, in other words, again, four options—if you find that—as the defendant alleges, that this was an accident, you could not find the defendant guilty of felonious child abuse inflicting serious bodily injury or felonious child abuse or misdemeanor child abuse. Accident would be a defense to all of those. That's the reason I read that defense a number of times—also, intent—that intent may be actual intent to inflict injury or culpable or criminal negligence from which such intent may be implied.
Defendant now contends he was prejudiced by the omission of a not guilty mandate in the felonious child abuse inflicting serious bodily injury instructions because “such a mandate [was given] for the lesser-included offenses, the failure to give the mandate reduced the State's burden of proof, and the evidence was sharply conflicting[.]” In support of his argument, defendant relies on State v. Ward, 300 N.C. 150, 266 S.E.2d 581 (1980), State v. Ramey, 273 N.C. 325, 160 S.E.2d 56 (1968), and other similar cases.
In Ward, the defendant was charged with first-degree murder and convicted of second-degree murder at trial. 300 N.C. at 151, 266 S.E.2d at 582. On appeal, the defendant argued
the trial court erred (a) in omitting a substantial feature of defendant's case in the recapitulation of the evidence to the jury and (b) in failing to instruct the jury in the final mandate that if they were not satisfied beyond a reasonable doubt as to each essential element of the charge of second[-]degree murder, then it would be their duty to return a verdict of not guilty of that charge.
Id. at 154, 266 S.E.2d at 584. Upon review, our Supreme Court first determined the trial court erred in failing to recapitulate defendant's evidence on a material and substantial feature of his case. Id. at 156, 266 S.E.2d at 585. The Court then found that error was compounded by the trial court's further omission of a not guilty mandate in the instructions on second-degree murder. Id. The Court noted that although the trial court instructed the jury that it should find the defendant guilty of second-degree murder if it found each element beyond a reasonable doubt, the trial judge “failed to complete this portion of the mandate with an instruction to the effect that if the jury did not find or had a reasonable doubt as to one or more of these facts, then it would be their duty to acquit the defendant of second[-]degree murder.” Id. The Court held that omission was error because “[b]y failing to give the converse or alternative view that acquittal should result if the jury were not satisfied beyond a reasonable doubt as to each and every stated element, the trial judge failed to provide even a general application of the law to the evidence raised by defendant's testimony.” Id. at 156–57, 266 S.E.2d at 585. The Court ultimately reversed the defendant's conviction in favor of a new trial because the two errors “combined to deprive [the] defendant of the full benefit of his testimony.” Id. at 157, 266 S.E.2d at 586.
In Ramey, the defendant argued self-defense in response to a second-degree murder charge. 273 N.C. at 326, 160 S.E.2d at 56–57. At the conclusion of the evidence, the trial court issued instructions on second-degree murder, manslaughter, and self-defense. Id. at 327–28, 160 S.E.2d at 58. Yet, as the Court recognized, “[t]he only portions of the charge in which the jury was instructed as to circumstances under which they might return a verdict of not guilty relate[d] directly and solely to the return of a verdict of not guilty in the event the jury found defendant acted in the lawful exercise of his right of self-defense.” Id. at 328, 160 S.E.2d at 58. The defendant was ultimately convicted of manslaughter. Id. at 327, 160 S.E.2d at 57. Although the defendant acknowledged he shot the victim in self-defense, the Court recognized that “[a] plea of not guilty puts in issue every essential element of the crime charged[,]” id. at 328, 160 S.E.2d at 58 (emphasis omitted), and thus,
defendant was entitled to an explicit instruction, even in the absence of a specific request therefor, to the effect the jury should return a verdict of not guilty if the State failed to satisfy them from the evidence beyond a reasonable doubt that a bullet wound inflicted upon [the victim] by defendant proximately caused his death.... The necessity for such instruction is not affected by the fact there was plenary evidence upon which the jury could base a finding that a bullet wound inflicted upon [the victim] by defendant proximately caused his death.
Id. at 329, 160 S.E.2d at 59.
We are not persuaded these cases mandate a new trial in the present case where a not guilty mandate was issued after the trial court instructed on all of the possible offenses. First, there was no not guilty mandate issued in Ward. Moreover, it is not clear in Ward whether the trial court's failure to issue a not guilty mandate would have warranted a new trial had the trial court not also erred in recapitulating the defendant's evidence. The trial court determined the omission of the not guilty mandate compounded the failure to recapitulate defendant's evidence and the combined effects of the errors were enough to require a new trial. Second, in Ramey the jury was only given the option to acquit the defendant based on self-defense. The trial court never issued a not guilty mandate based on a failure to find the elements of the offenses beyond a reasonable doubt.
In the present case, although the trial court did not issue a not guilty mandate in the portion of the instructions on felonious child abuse inflicting serious bodily injury, the trial court did issue a not guilty mandate after instructing on all of the lesser included offenses. As evident from the instructions quoted above, the trial court issued instructions that can only reasonably be understood to direct the jury to consider the offense of felony child abuse if the jury did not find each element of felonious child abuse inflicting serious bodily injury beyond a reasonable doubt. In fact, before proceeding to instruct on felony child abuse, the trial court clarified its instructions to the jury by explaining, “[s]o the first decision to make is, is he guilty of felonious child abuse inflicting serious bodily injury? If you say “No” to that, then you turn your attention to whether or not he's guilty of felonious child abuse.” The trial court then issued similar instructions to the jury after instructing on the elements of the lesser offense of felony child abuse, explaining that the jury should consider whether defendant is guilty of misdemeanor child abuse if the jury did not find defendant guilty of felony child abuse. Then, at the conclusion of its instructions on the lesser offense of misdemeanor child abuse, the trial court issued a not guilty mandate, instructing the jury that “[i]f you do not so find or have a reasonable doubt as to one or more of these things, it would be your duty to return a verdict of not guilty.” We hold this not guilty mandate at the conclusion of the instructions for felonious child abuse inflicting serious bodily injury and lesser included offenses, which was separate from the trial court's instruction on a not guilty mandate based on accident, was not only sufficient, but was proper in this case where the jury was to consider lesser included offenses. It was not necessary for the trial court to issue a not guilty mandate after instructing on the elements of felonious child abuse inflicting serious bodily injury. When the instructions are viewed in the context of the overall charge, as they must be, see State v. Wright, 302 N.C. 122, 127, 273 S.E.2d 699, 703 (1981), the instructions clearly presented the applicable law arising from the evidence. Thus, we hold the trial court did not err, much less plainly err.
Accident
Defendant also contends the trial court plainly erred in issuing instructions to the jury concerning its duty if the jury determined George's injuries were accidental. Defendant acknowledges that the trial court correctly instructed the jury that if it determined George's injuries were the result of an accident, the jury should return a verdict of not guilty. Defendant however takes issue with the following portion of the trial court's instructions on felonious child abuse inflicting serious bodily injury:
Or if you fail to find from a reasonable doubt that the injury to the victim was not accidental, it would be your duty to return a verdict of not guilty.
So the first thing—if—I'm sorry. It would not be your verdict to return a verdict of not guilty.
Defendant contends this portion of the instructions contradicted other portions of the instructions that correctly explained that if the jury determined George's injuries were the result of an accident defendant would not be guilty of any crime. Defendant contends a new trial is necessary because the jury may have acted upon the incorrect portion of the instructions. Defendant relies on State v. Harris, 289 N.C. 275, 221 S.E.2d 343 (1976).
In Harris, our Supreme Court granted a new trial to a defendant convicted of second-degree murder because the trial court improperly instructed the jury that the defendant bore the burden of satisfying them that the killing was an accident. Id. at 280, 221 S.E.2d at 347. The Court first explained that the instruction was erroneous because an “[a]ssertion by the accused that a killing ... was accidental is in no sense an affirmative defense shifting the burden to him to satisfy the jury that death of the victim was in fact an accident.” Id. at 279, 221 S.E.2d at 346. Instead, such assertion is a denial of the intent to commit the killing and does not impose a burden of proof on the accused. Id. “The burden remained upon the State to prove each and every element of the crime charged beyond a reasonable doubt.” Id. at 279–80, 221 S.E.2d at 346–47. The Court then explained further that the trial court's subsequent correct instructions on the burden of proof did not change the result because “[t]he jury cannot be expected to know which of two conflicting instructions is correct.” Id. at 280, 221 S.E.2d at 347. The Court recognized that “where the court charges correctly at one point and incorrectly at another, a new trial is necessary because the jury may have acted upon the incorrect part.” Id.
Defendant now argues for the same result in the present case because it cannot be assumed that the jury relied on the correct instruction regarding accident.
At the outset of our analysis on this issue, we note, as did the Court in Harris in regards to murder, that accident is not an affirmative defense to felonious child abuse inflicting serious bodily injury, but instead shows a lack of intent, an essential element of the offense. Yet, unlike in Harris, the trial court in this case correctly instructed the jury that “[w]hen a defendant asserts that the victim's injury was a result of an accident, he is, in effect, denying the existence of those facts which the State must prove beyond a reasonable doubt in order to convict him.” There was no shifting the burden to defendant in the present case. In circumstances where the trial court properly instructs on the State's burden, it is not necessary for the trial court to instruct that a finding of accident requires a not guilty verdict. See State v. Jackson, 36 N.C.App. 126, 129, 242 S.E.2d 891, 893–94 (1978).
However, the trial court did instruct the jury regarding accident in this case and we acknowledge that the portion of the jury instructions identified by defendant was erroneous. Nevertheless, we are not persuaded the erroneous instruction constitutes plain error.
Since Harris, this court has addressed the consequence of a trial court's incorrect jury instructions on the issue of burden of proof in cases where the trial court subsequently issued correct instructions placing the burden of proof on the State. See State v. Harris, 46 N.C.App. 284, 264 S.E.2d 790 (1980); State v. Graham, 145 N.C.App. 483, 549 S.E.2d 908 (2001). In those cases, this Court noted exceptions to the rule that an incorrect instruction on the burden of proof is not corrected by subsequent correct instructions and held there was not reasonable cause to believe that the juries in those cases were misled when correct instructions were given a number of times after the erroneous instructions. Harris, 46 N.C.App. at 289, 264 S.E.2d at 793; Graham, 145 N.C.App. at 486, 549 S.E.2d at 910–11. Specifically in Graham, this Court held “the trial court's single erroneous jury instruction on the burden of proof does not amount to plain error[.]” 145 N.C.App. at 486, 549 S.E.2d at 911.
Reviewing for plain error in the present case, we are guided by this Court's decisions and hold there is not a reasonable possibility that the jury would have returned a different verdict in the present case absent the erroneous instruction because the trial court correctly instructed the jury throughout the charge to the effect that defendant would not be guilty of any crime if the jury determined George's injuries were accidental. Such instructions were given both before and after the erroneous instruction.
What is more, the present case did not involve an erroneous instruction on the burden of proof. The faulty instruction in this case involved directing the jury that if it failed to find beyond a reasonable doubt that George's injuries were not accidental, it would not be the jury's duty to return a verdict of not guilty of felonious child abuse inflicting serious bodily injury. While this is an incorrect statement of the law, when the instruction is viewed in the context of the entire charge, it is evident the trial court was simply intending to direct the jury to consider the lesser included offenses instead of directing a not guilty verdict before the lesser offenses could be contemplated. This is evident because the trial court instructed the jury numerous times that there would be four options on the verdict sheet—guilty of felonious child abuse inflicting serious bodily injury, guilty of felony child abuse, guilty of misdemeanor child abuse, and not guilty. Lastly, even if the jury were to have followed the trial court's erroneous instruction and moved to consider the lesser included offenses, the jury was instructed in the lesser included instructions that it should return a not guilty verdict if they found George's injuries were the result of an accident.
When the instruction is viewed in the context of the entire charge, it is abundantly clear the jury was to return a verdict of not guilty if it was not satisfied beyond a reasonable doubt that George's injuries were not accidental. Thus, we hold the trial court's erroneous instruction does not amount to plain error.
Aggravating Factor
Defendant also takes issue with the trial court's instructions to the jury regarding the aggravating factor that George was very young. See N.C. Gen.Stat. § 15A–1340.16(d)(11) (2013). Specifically, defendant contends he should receive a new sentencing hearing because the trial court erred by failing to instruct the jury that “[e]vidence necessary to prove an element of the offense shall not be used to prove any factor in aggravation[,]” as provided in N.C. Gen.Stat. § 15A–1340.16(d). Defendant further contends he was prejudiced by the error because there is a reasonable possibility the jurors used George's age to find both the intent for child abuse and that George was very young.
Although defendant did not object to the jury instructions at trial, similar to his assertion in issue one, defendant contends this third issue was preserved for appellate review because the trial court indicated it would instruct pursuant to N.C.P.I.—Crim. 204.25, which begins with the language in N.C. Gen.Stat. § 15A–1340 .16(d) quoted above, “[e]vidence necessary to prove an element of the offense shall not be used to prove any factor in aggravation[.]” See N.C.P.I.Crim.—204.25 (2014). In support of his argument, defendant relies on State v. Barrow, 216 N.C.App. 436, 718 S.E.2d 673 (2011), aff'd per curiam, 366 N.C. 141, 727 S.E.2d 546 (2012), which in turn relies on Keel, discussed above. As in issue one, we find the present case distinguishable from the cases relied on by defendant and hold this issue was not preserved for appeal.
In Barrow, the jury convicted the defendant of second-degree murder and found the aggravating factors that the victim was very young and physically infirm and that the defendant took advantage of a position of trust to commit the offense. Id. at 441, 718 S.E.2d at 677. Similar to the present case, the defendant in Barrow argued “the jury ‘probably’ relied on identical evidence to find both the elements of second[-]degree murder and the aggravating factors” because “the trial court erred in failing to instruct the jury ... that ‘[e]vidence necessary to prove an element of the offense shall not be used to prove any factor in aggravation....’ “ Id. at 445, 718 S.E.2d at 679 (quoting N .C. Gen.Stat. § 15A–1340.16(d)). Before holding the trial court erred, this Court addressed whether the issue was preserved despite the defendant's failure to object to the jury instructions issued. Relying on Keel, this Court held that where the trial court advised the parties that it would give the pattern jury instructions, including N.C.P.I.Crim.—204.25, and then omitted a portion of N.C.P.I.Crim.—204.25, the omission was properly before this Court for review. Id.
Because there was no indication that there was a request for the pattern instructions in Barrow, at first glance, it seems Barrow is controlling in the present case. However, it is evident upon review of the charge conference on the aggravating factor in this case that the trial court did not merely indicate that it would instruct pursuant to N.C.P.I.Crim.—204.25 and then fail to instruct as indicated, as defendant insinuates. In this case, the trial court addressed the instruction it intended to issue as follows:
So I will give the aggravating factor instruction—204.25—that they found the defendant guilty of the substantive charge. And then they have to consider the following questions:
Do they find beyond a reasonable doubt the existence of the aggravating factor—the victim was very young?
The trial court did not merely state it would give N.C.P.I.Crim.—204.25, but repeated the instructions it intended to offer. The trial court never indicated it would give the portion of N.C.P.I.—Crim. 204.25 which defendant now contends was erroneously omitted and defendant did not take issue with the proposed instructions. Subsequently, the trial court issued instructions for the aggravating factor that mirrored the instructions it detailed during the charge conference. Under these circumstances, where the State indicated it was relying on the evidence presented at trial to prove the aggravating factor, the trial court detailed the instructions it intended to issue without mention of the instruction now claimed to have been omitted in error, and the trial court instructed the jury precisely as proposed, we hold the trial court's reference to the pattern instruction did not preserve the issue for appeal absent an objection by defendant. Furthermore, because defendant does not assert plain error, the issue is not properly before this Court.
Yet, assuming arguendo the issue was properly before this Court for review, we are not persuaded the omission from N.C.P.I.Crim.—204.25 constituted reversible error in this case. First, our Supreme Court has recognized that while the age of the victim is an element of felony child abuse offenses, in that the victim must be under the age of sixteen, see N.C. Gen.Stat. § 14–318.4(a3), the fact that a victim is very young is not an element necessary to prove the offenses and, therefore, is properly considered as an aggravating factor. State v. Ahearn, 307 N.C. 584, 603, 300 S.E .2d 689, 701 (1983). Second, distinguishing Barrow in this Court's recent State v. Saunders decision, this Court explained that
in Barrow, “the State's theory regarding second[-]degree murder relied almost exclusively on the fact that because of the vulnerability of a five-month[-]old child, shaking him is such a reckless act as to indicate a total disregard of human life—the showing necessary for malice. Thus, the State's theory regarding malice is virtually identical to the rationale underlying submission of the aggravating factor that the victim was ‘very young and physically infirm.’ “ In other words, the victim's infancy was the sole evidence to establish the recklessness of shaking him, and, of course, his age of five months was also the evidence to prove the aggravating factor of the victim in Barrow being “very young.”
––– N.C.App. ––––, ––––, 768 S.E.2d 340, 343 (2015) (quoting Barrow, 216 N.C.App. at 446–47, 718 S.E.2d at 680) (internal citations omitted) (alterations in original). We find this explanation applicable in distinguishing the present case from Barrow because, unlike in Barrow, George's age was not the sole evidence to establish the elements of felony child abuse inflicting serious bodily injury. Contrary to defendant's assertion that George's age was used to prove intent to commit child abuse, there was considerable evidence in this case other than George's age to establish intent. Thus, if this issue was preserved, there is not a reasonable possibility that the jury relied on the same evidence to convict defendant of felony child abuse inflicting serious bodily injury and to find the aggravating factor that George was very young.
B. Evidentiary Issues
Defendant also raises issues concerning the trial court's evidentiary rulings. “Evidentiary errors are harmless unless a defendant proves that absent the error a different result would have been reached at trial.” State v. Ferguson, 145 N.C.App. 302, 307, 549 S.E.2d 889, 893, disc. review denied, 354 N.C. 223, 554 S.E.2d 650 (2001). However, evidentiary issues must be preserved below to be reviewed on appeal. Rule 10(a) of the Appellate Rules provides in pertinent part as follows:
(1) General. In order to preserve an issue for appellate review, a party must have presented to the trial court a timely request, objection, or motion, stating the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context. It is also necessary for the complaining party to obtain a ruling upon the party's request, objection, or motion....
N.C. R.App. P. 10(a)(1); see also State v. Eason, 328 N.C. 409, 420, 402 S.E.2d 809, 814 (1991). Yet, as with unpreserved issues involving jury instructions, the North Carolina Supreme Court “has elected to review unpreserved issues for plain error when they involve ... rulings on the admissibility of evidence.” Gregory, 342 N.C. at 584, 467 S.E.2d at 31.
Exclusion of Testimony
In the first evidentiary issue raised by defendant on appeal, defendant takes issue with the exclusion of his brother's testimony that he had no reason to lie.
At trial, defendant's brother was called as a defense witness and testified that he was at the house the day of the alleged abuse and did not notice that George was injured. He further testified that Sally was not home when he arrived at the house, but that she later came home with George's mother. During cross-examination, the State inquired into the witness' relationship with defendant, why the witness had not given a statement to police, and if the witness had a criminal record. During redirect-examination, the defense then asked the witness, “And is there any way in the world you would lie for [defendant] in this court?” The witness answered, “Oh, no. I have no reason.” The State's objection to this question and answer was sustained by the trial court.
It is proper for a party to bolster the credibility of the party's witness once the credibility of the witness has been attacked. See State v. Ingram, 23 N.C.App. 186, 189, 208 S.E.2d 519, 521 (1974) (noting it is proper to show lack of bias of a party's own witness once testimony of the witness has been impeached by the other side); see also N.C. Gen.Stat. § 8C–1, Rule 608(a) (2013). Yet, “[t]he credibility of a witness is for a jury to decide and it is improper for counsel to ask his witness, ‘Are you telling this jury the truth?’ “ State v. Reid, 175 N.C.App. 613, 624, 625 S.E.2d 575, 585 (2006).
Defendant recognizes both of these rules of law but contends the trial court erred in this case by excluding the testimony of his brother because he did not ask his brother whether his brother was telling the truth and because his brother's testimony was relevant to rehabilitate his credibility and show a lack of bias after the State attacked his brother's credibility. Defendant further contends he was prejudiced because his brother was the only witness to corroborate his testimony that Sally was not home at the time of the incident. Defendant relies primarily on a single paragraph in Reid.
In Reid, the defendant argued “he [was] entitled to a new trial ... because the trial court erroneously admitted, over his objection, the testimony of [a witness] that he had no reason to lie about defendant.” Id. In holding the trial court did not err, this Court explained as follows:
In the instant case, the prosecution, over objection by defendant, asked [a witness], “Do you have any reason to lie on him?” This question is substantially different from “are you telling this jury the truth” and goes to whether or not the witness has any reason to lie, not whether or not he is currently lying.
Id. at 624–25, 625 S.E.2d at 585.
Defendant now argues the question to his brother during redirect examination in this case was akin to “Do you have a reason to lie?” instead of “Are you lying?” The State argues the contrary. We are not persuaded either interpretation is correct.
We emphasize that the question at issue in this case is, “And is there any way in the world you would lie for [defendant] in this court?” This question, which asks the witness to consider if there are any circumstances in which he would lie, is unlike either question addressed in Reid and properly excluded from the evidence as irrelevant. The fact that defendant answered, “Oh, no. I have no reason[,]” does not change the nature of the question to “Do you have a reason to lie?” Defendant should have been more precise in the wording of his question.
Furthermore, the only evidence truly tending to show bias was the witness' relationship with defendant. The fact that defendant concluded the redirect examination of his brother without further attempting to bolster his brother's credibility shows that his brother's testimony, which altogether accounted for only nine out of over six hundred pages of testimony, was not as significant as defendant now claims.
Hearsay Evidence
In the last issue on appeal, defendant contends the trial court erred by admitting unreliable hearsay into evidence at trial in violation of his confrontation and due process rights. Specifically, defendant challenges Sally's testimony that George pointed to defendant when George's mother asked him, “Who did this to you?” Sally testified to this twice. Defendant's objection and motions to strike were overruled by the trial court.
At the outset of this issue, we note defendant did not specify the basis of his objection to the testimony at trial. Defendant merely objected and moved to strike without elaborating. As explained above, to preserve an issue for appellate review, the party must make “a timely request, objection or motion, stating the specific grounds for the ruling sought if the specific grounds are not apparent.” Eason, 328 N.C. at 420, 402 S.E.2d at 814 (emphasis added). “[A] constitutional question which is not raised and passed upon in the trial court will not ordinarily be considered on appeal.” State v. Hunter, 305 N.C. 106, 112, 286 S.E.2d 535, 539 (1982). Defendant, however, contends this issue was preserved because it was apparent from the context of his objection that the objection was grounded in his rights to confrontation and due process. In the alternative, defendant contends the trial court's admission of the testimony amounted to plain error.
Upon review, we hold the basis of defendant's objection was not apparent from the context. Thus, defendant did not preserve this issue for appellate review. Nevertheless, assuming the issue was preserved, the trial court did not err, much less plainly err, in admitting the testimony regarding George's out of court assertion.
In arguing the trial court erred in admitting testimony that George pointed at defendant when asked who harmed him, defendant relies on the Ohio Supreme Court's decision in State v. Clark, 999 N.E.2d 592 (2013), which defendant noted was pending before the United States Supreme Court at the time he filed his brief with this Court on 27 March 2015. See Ohio v. Clark, –––U.S. ––––, 189 L.Ed.2d 896 (2014) (granting petition for writ of certiorari). In the Ohio court's decision, the court recognized that “Ohio law impose[d] a duty on all school officers and employees, including administrators and employees of child day-care centers, to report actual or suspected child abuse or neglect.” 999 N.E.2d at 596. The court further recognized that although “the primary purpose of reporting is to facilitate the protection of abused and neglected children rather than to punish those who maltreat them, it is clear that the General Assembly considered identification and/or prosecution of the perpetrator to be a necessary and appropriate adjunct in providing such protection [.]” Id. (emphasis in original). The court in Clark then held the trial court's admission of an injured three-year-old's statement to his preschool teacher identifying the defendant as his abuser in the defendant's assault trial implicated the defendant's constitutional rights when the three-year-old was deemed incompetent to testify at trial. Id . at 597. The court explained that “[w]hen teachers suspect and investigate child abuse with a primary purpose of identifying the perpetrator, any statements obtained are testimonial for purposes of the Confrontation Clause.” Id.
The United States Supreme Court, however, heard arguments in Clark on 2 March 2015 and issued its decision reversing the Ohio Supreme Court on 18 June 2015. The United States Supreme Court held the three-year-old's statements to preschool teachers were not testimonial and their introduction at trial did not violate the Confrontation Clause because “[the] statements clearly were not made with the primary purpose of creating evidence for [the defendant's] prosecution.” Ohio v. Clark, ––– U.S. ––––, ––––, 192 L.Ed.2d 306, 315 (2015). In so holding, the Court explained that “a statement cannot fall within the Confrontation Clause unless its primary purpose was testimonial. Where no such primary purpose exists, the admissibility of a statement is the concern of state and federal rules of evidence, not the Confrontation Clause.” Id. at –––, 192 L.Ed.2d at 315 (internal quotation marks omitted). The Court declined to adopt a categorical rule excluding statements to persons other than law enforcement officers from the reach of the Confrontation Clause, but noted “such statements are much less likely to be testimonial than statements to law enforcement officers.” Id. The Court instead examined the testimonial nature of the three-year-old's statements considering all the relevant circumstances. The Court emphasized that the three-year-old's statements were made to preschool teachers, not the police, in the context of an ongoing emergency involving suspected child abuse. The Court explained as follows:
When [the three-year-old's] teachers noticed his injuries, they rightly became worried that the [three]-year-old was the victim of serious violence. Because the teachers needed to know whether it was safe to release [the three-year-old] to his guardian at the end of the day, they needed to determine who might be abusing the child. Thus, the immediate concern was to protect a vulnerable child who needed help.... [T]he emergency in this case was ongoing, and the circumstances were not entirely clear. [The three-year-old's] teachers were not sure who had abused him or how best to secure his safety. Nor were they sure whether any other children might be at risk. As a result, their questions and [the three-year-old's] answers were primarily aimed at identifying and ending the threat.... The teachers' questions were meant to identify the abuser in order to protect the victim from future attacks. Whether the teachers thought that this would be done by apprehending the abuser or by some other means is irrelevant....
There is no indication that the primary purpose of the conversation was to gather evidence for [the defendant's] prosecution. On the contrary, it is clear that the first objective was to protect [the three-year-old]. At no point did the teachers inform [the three-year-old] that his answers would be used to arrest or punish his abuser. [The three-year-old] never hinted that he intended his statements to be used by the police or prosecutors. And the conversation between [the three-year-old] and his teachers was informal and spontaneous. The teachers asked [the three-year-old] about his injuries immediately upon discovering them, in the informal setting of a preschool lunchroom and classroom, and they did so precisely as any concerned citizen would talk to a child who might be the victim of abuse....
Id. at –––, 192 L.Ed.2d at 315–16 (footnote omitted). The Court further noted that “[the three-year-old's] age fortifies [its] conclusion that the statements in question were not testimonial[ ]” because “[s]tatements by very young children will rarely, if ever, implicate the Confrontation Clause.” Id. at –––, 192 L.Ed.2d at 316.
Upon review of all the relevant circumstances in the present case, we agree with defendant's assertion that this case is similar to Clark. Yet, we are bound by the analysis of the United States Supreme Court, not the Ohio Supreme Court. In keeping with the United States Supreme Court's decision, we hold George's pointing to defendant in response to his mother's inquiry was not testimonial in nature. As a result, defendant's confrontation and due process rights were not violated.
III. Conclusion
For the reasons discussed, we find the trial court did not err, nor plainly err in instances where the issues were not preserved for appeal, in instructing the jury or ruling on evidentiary matters below.
NO ERROR.
Judges STEPHENS and ZACHARY concur.
Report per Rule 30(e).