An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
NO. COA13-1105 NORTH CAROLINA COURT OF APPEALS
Filed: 6 May 2014
STATE OF NORTH CAROLINA
v. Onslow County No. 11 CRS 55657–61 LARRY WAYNE ANDERSON
Appeal by defendant from judgments entered 12 April 2013 by
Judge Charles H. Henry in Onslow County Superior Court. Heard
in the Court of Appeals 3 February 2013.
Attorney General Roy Cooper, by Assistant Attorney General Linda Kimbell, for the State.
Parish & Cooke, by James R. Parish, for defendant- appellant.
HUNTER, JR., Robert N., Judge.
Defendant Larry Wayne Anderson (“Defendant”) appeals from
judgments entered on 12 April 2013. Defendant argues (i) the
trial court erred in denying his motion to dismiss in 11 CRS
55659, (ii) the trial court violated Defendant’s rights under
the confrontation clause of the United States and North Carolina
Constitutions, and (iii) the trial court committed plain error -2- in admitting certain statements by a treating physician in this
child abuse case. After careful review, we find no plain error.
I. Facts & Procedural History
On 11 September 2012 the Onslow County Grand Jury indicted
Defendant on charges of felony child abuse inflicting serious
mental injury (“ISMI”), felony child abuse inflicting serious
bodily injury (“ISBI”), and contributing to the delinquency or
other condition of a minor (“CDM”) against J.H. (“Antonio”)1 and
J.B. (“Corey”). The same day, Defendant was indicted on charges
of accessory after the fact of child abuse and CDM against his
biological daughter, K.A. (“Violet”). Defendant was also
indicted on 11 September 2012 on charges of assault with a
deadly weapon inflicting serious injury, ISBI, CDM, and two
counts of ISMI against another stepchild, S.B. (“Benjamin”). On
13 November 2012, the Onslow County Grand Jury indicted
Defendant on charges of ISMI, ISBI, and CDM against W.B.
(“Dakota”).2 Defendant pled not guilty to all charges. The
charges came on for trial at the 8 April 2013 session of Onslow
Count Superior Court. The trial transcript tended to show the
following facts.
1 Pseudonyms are used to protect the identities of the children involved in this case. 2 Collectively, we refer to all five children as “the children.” -3- Samual Brown (“Mr. Brown”) is the biological father of
Benjamin, Corey, and Dakota, whom he fathered with his former
wife, Mrs. Janet Anderson (“Mrs. Anderson”). Mr. Brown, an Army
serviceman, was deployed to Afghanistan in February 2009. In
November 2009, while Mr. Brown was still in Afghanistan, Mr.
Brown and Mrs. Anderson separated. Mr. Brown paid spousal
support after he and Mrs. Anderson separated.3 Mr. Brown
unsuccessfully asked Mrs. Anderson for primary custody of his
children after he returned home. Mr. Brown continued placing
phone calls to his children while he was deployed and after he
returned home.
On 9 July 2011, Mr. Brown spoke with Benjamin over the
phone. Mr. Brown said his son was “hysterical, crying.”
Benjamin told Mr. Brown that Defendant “tied me up and duct-
taped my mouth.” Mr. Brown told Benjamin to hand the phone to
his ex-wife Mrs. Anderson, whom he told “I want the kids, and I
want them now. That way, I can take care of them and make sure
they’re happy.” Mr. Brown then called the Onslow County
Department of Social Services (“DSS”) and filed a report of
abuse.
3 Mrs. Anderson later married Defendant on 1 November 2010. -4- Mr. Brown was stationed in Alaska at the time of the phone
call and made arrangements to move to Fort Bragg, where his
children lived, in August 2011. When he moved to Fort Bragg,
Mr. Brown’s children were already in foster care, and he was
able to regain custody about three weeks after moving to North
Carolina. Mr. Brown also attempted to gain custody of Antonio,
but was unsuccessful.
Mr. Brown noticed that his children were “different” after
he regained custody of them. Mr. Brown said Benjamin was
“[s]cared of anybody he didn’t know,” and that he would attach
himself to Mr. Brown whenever Benjamin went to a new place or
met new people. Mr. Brown said Benjamin was afraid of Defendant
and that Benjamin thought Defendant “was going to come get him.”
Mr. Brown said Corey was “scared of any man, period, besides
me.” Benjamin, Corey, and Dakota would “[w]ake up screaming”
because “they were afraid of their nightmares.” Benjamin banged
his head against walls, scratched himself, and jumped out of a
second floor window at Mr. Brown’s home. Mr. Brown said he was
unable to properly care for Benjamin. Benjamin ran away from
home and Mr. Brown called DSS for help. Mr. Brown then agreed
to put Benjamin in foster care because he said he “couldn’t help -5- him the way he needed to be helped.” Mr. Brown remained in
contact with Benjamin, calling him every week.
Mr. Brown moved to Illinois with Corey and Dakota after he
was discharged under the Army’s Family Care Plan. After moving
to Illinois, Mr. Brown visited often with his close friend, Mr.
Larry Aldrich. Mr. Brown said when Corey and Dakota first met
Larry Aldrich, they “panicked” because they couldn’t understand
the difference between Larry Aldrich and Defendant, Larry
Anderson. Mr. Brown said it took about four months for Corey
and Dakota to become comfortable with anyone named Larry. Mr.
Brown also said Dakota, who was four at the time of trial, only
began speaking after moving from North Carolina, and began
toilet training at age four. Mr. Brown said Corey remains
uncomfortable around anyone she does not know and will cling to
anyone familiar who is nearby.
Pediatrician Tolly Williams Garrett (“Dr. Garrett”)
testified next at trial. Dr. Garrett observed interviews and
physical examinations of the children. Dr. Garrett said that
there were “clear indicators that [Benjamin], [Antonio],
[Corey], and [Violet] all had been physically abused.” Dr.
Garrett said the evidence of physical abuse was less clear with
Dakota, but that DSS “felt like he had clearly been neglected, -6- as had the other four.” Dr. Garrett described the harm as
“severe” and repetitive with likely permanent or long-lasting
effects on the five children. Dr. Garrett said “the harm came
from a caregiver” which causes longer term damage than damage
from an unknown person.
Dr. Garrett described DSS’s interview of the children.
Antonio said he “was hit across the chest by [Defendant]” with a
mini-blind stick and was punished by standing in the corner with
his hands behind his back and not being allowed to eat lunch.
Before Antonio disclosed these details, he needed several
reassurances that he could safely speak about these punishments.
Antonio recounted Benjamin jumping from the second-story window.
When asked why Benjamin jumped, Antonio said he thought Benjamin
wanted to commit suicide. Antonio, Benjamin, and Corey said
Defendant repeatedly kicked Benjamin in the genitals while bound
and that Benjamin had his mouth taped shut by Defendant. Corey
told her interviewer that “Daddy not like [Benjamin].”4
Antonio also said Corey had her mouth duct-taped as a
punishment and that Defendant “attempted to attach [Corey] to a
ceiling fan.” Antonio said Corey was “teased or tormented with
4 Several of the children referred to Defendant as “Daddy” or “Dad.” -7- a laser light.” Dr. Garrett recounted several other details of
possible abuse:
There were reports of the children turning over a trash can to get food and then getting in trouble for that. The children had dead bolts put on their bedroom door. They were locked in their bedrooms. That was confirmed by Social Workers and law enforcement, that the dead bolts were on the outside of the doors; the children were locked inside the room at night, which of course, is unsafe due to fire hazard, that sort of thing, but also, they couldn’t get up to go to the bathroom.
There were reports of children urinating in the vents and things like that because they couldn’t get out to go to the bathroom, and they were deprived of food. [Antonio]’s report clearly said the rule was, “Don’t get into stuff,” and, “No, we don’t get lunch.”
Dr. Garrett also described evidence of abuse to Dakota.
She said Dakota had “multiple bruises,” some of which resulted
from “an incident with a dog,” where Dakota was left outside and
a dog wrapped its dog chain around Dakota’s neck. Dakota’s
physical examination found a “festering infection in his foot”
and that Dakota was “noticeably developmentally delayed.”
Dr. Garrett discussed interviews with an adult roommate who
lived with the Andersons for a time, Alicia Everhart (“Ms.
Everhart”). Ms. Everhart told her interviewers that the
children were not fed enough, that their bedroom doors were -8- locked, and that “the house reeked of urine because the children
were voiding in the vents.” Ms. Everhart also told her
interviewers that Benjamin was struck with the mini-blind rod,
that the children were infrequently bathed, and that the
children were “not allowed to go outside and play.”
A neighbor, Michelle Edwards (“Ms. Edwards”) told
interviewers about two events that Dr. Garrett described as
“concerning.” The first involved
several of the children being forced to carry weights off of a weight bar, running up and down the driveway in summer heat. She reported that when the children fell or stopped and sat down they were yanked up and yelled at to continue running. She reported this event continued in spite of the fact that Mr. and Mrs. Anderson were aware that she was watching.
Ms. Edwards also said she saw a separate event where Defendant
was “carrying and throwing out furniture into a pile.” Ms.
Edwards described Defendant screaming next to one of the nearby
children, and that Defendant proceeded to “chop up and destroy
that furniture.” The event seemed to involve an argument
between Defendant and Mrs. Anderson. From the evidence
collected, Dr. Garrett concluded that Antonio, Benjamin, Corey,
and Dakota all suffered emotional harm from their interactions
with Defendant, specifically saying that DSS “characterized that -9- we felt like the children had suffered at both the hands of Mrs.
Anderson and [Defendant] separately, as well as together.” Dr.
Garrett recommended treatments and that Defendant have no
contact with any of the children.
Mr. Brown took his children to two psychologists on Fort
Bragg’s campus; Dr. Sharon Cooper (“Dr. Cooper”) and Ms. Linda
Giles, who both testified at trial. Dr. Cooper, a developmental
and forensic pediatrician, diagnosed Benjamin as physically
abused, neglected, and psychologically maltreated. Dr. Cooper
also opined that Benjamin suffered from post-traumatic stress
disorder and insomnia. Dr. Cooper further opined that Corey and
Dakota suffered from severe psychological problems.
Ms. Giles is a child therapist at Fort Bragg who treated
Corey and Dakota. Ms. Giles said Corey and Dakota “were the
worst children I had seen at Fort Bragg at that point, with the
symptoms they had, both psychologically and physically.” Ms.
Giles said the children were malnourished, had distended
stomachs, thin hair, thin bone structure, that they had worms,
that their digestive systems were “not working properly,” and
that their “eating and defecating was -- was a problem.”
Psychologist Laurie Hawkins (“Ms. Hawkins”) testified next
at trial. Ms. Hawkins also worked with Benjamin and diagnosed -10- him with post-traumatic stress disorder and attention deficit
hyperactivity disorder. Ms. Hawkins completed a “trauma
narrative” with Benjamin, which is a therapeutic device designed
to allow a child to tell their story. In this exercise,
Benjamin would say a sentence telling his life story and then
stop to allow Ms. Hawkins to record his statements. Ms. Hawkins
then would read the statements back to Benjamin, as well as to
his foster mother. Ms. Hawkins read aloud Benjamin’s narrative,
which said
Hi. My name is [Benjamin]. I am six years old. I live with Ms. Fieena Terree(phonetic), and Taylor. I like my home because it has fantastic stuff to play with. Ms. Fieena cooks good. My favorite is spaghetti and Oodles of Noodles and hot dogs. I live here because I got treated bad in my other home with Larry and Janet. I hate them a lot because they spanked me every day.
. . . .
When I lived with Larry and Janet, Larry spanked me. He does to me and [Antonio] and [Corey] and [Dakota]. He puts all of us in the same room because we were bad, and locked us in. We would try to get out. Me and [Antonio] found a secret way to get out, out the window. Larry is at work and Janet is asleep. He tied my arms and legs up. I rolled to the window and got untied. I went out the window and broke into Janet’s room and sneaked in the kitchen and got food. Me and my brothers and sister ate the food and we all sneaked out. Larry hit me in my -11- face. I was thinking, “I am super-mad at Larry,” and I hated him. One time he tied me up and taped my mouth for a long time until I got strong. I was thinking I wanted to punch him in the stomach. Janet knew he taped my mouth. Janet let him do it. One time Janet pushed Larry on me. Larry was very superbad. Janet was just a little bad. Larry is in jail and the policeman is next to the gate so he can’t get out. He is in jail because he spanked me and that’s called bad. Child abuse. Janet is in jail because she is bad and hurt us. It was not my fault. It was the grown-ups’ fault. I have learned in therapy to tell Ms. Lorri about my feelings. I am always happy every time I come.
Nancy Johnson (“Ms. Johnson”) testified next for the State.
Ms. Johnson is a social worker and worked with Antonio in
Jacksonville in 2012. Ms. Johnson started working with Antonio
after he had been removed to foster care and said she was
attempting to help Antonio testify in the case. Ms. Johnson
said Antonio’s symptoms began to increase when the subject of
testifying was discussed, that he began to soil his bed and have
nightmares. Antonio expressed fear of Larry to Ms. Johnson,
saying “[t]hey’ll get me. It doesn’t matter what anybody does.
They’ll get me.”
Gerald and Michelle Edwards, the Andersons’ neighbors
testified at trial and recounted the two incidents discussed at
the earlier interview with DSS. Defendant’s former roommate, -12- Ms. Everhart testified next. Ms. Everhart stated that she saw
the children being hit with the mini-blind rod and being thrown
around. Ms. Everhart said Defendant hit Benjamin “[m]aybe twice
a day, depending on the situation of what was going on” and that
Defendant hit Benjamin nearly every day. Ms. Everhart said
Defendant became enraged when Antonio and Benjamin got into a
trashcan at the home, hitting both children with the mini-blind
rod. Ms. Everhart said she saw Defendant and Mrs. Anderson lock
the children in their bedroom and that they were not allowed to
leave the room to use the bathroom or for any reason.
Ms. Everhart also recounted that Benjamin and Antonio once
“emptied the trash and brought it into [their] bedroom and
dumped it out all over the floor and they were eating out of the
trash can.” Ms. Everhart said the Andersons punished Benjamin
and Antonio for this, making them clean up the trash and hitting
them. Ms. Everhart also said that while she lived with the
Andersons, all five of their children lived in the same room
that had a deadbolt lock. Ms. Everhart moved out of the
Anderson residence because the fighting and violence between
Defendant and Mrs. Anderson continued to escalate.
Tina Morris (“Ms. Morris”), a social worker with Onslow
County DSS, testified. Ms. Morris arrived at the Andersons’ -13- home after receiving a request to perform a family assessment
from Antonio’s school. After Ms. Morris arrived, Antonio
returned from school, lifted his shirt, and showed Ms. Morris a
scar on his chest and his arm. When Ms. Morris asked who gave
him the scar, Antonio pointed to Defendant. Defendant was
present at the meeting and said “Who me?” Mrs. Anderson said
“No” and looked at Antonio. Antonio then said a child at school
gave him the scar.
Prior to Antonio getting home, Defendant told Ms. Morris
that Benjamin and Antonio were fighting, and that Benjamin had
hit Antonio with the mini-blind rod. Ms. Morris also said
Corey had a bruise on her cheek, which she said she had due to a
fall at a McDonalds. Ms. Morris performed a follow up interview
at Antonio’s school a week later. Antonio told Ms. Morris about
the trash incident and that Defendant hit him with a mini-blind
rod. Ms. Morris took photographs of Antonio’s injuries.
Jamie Johnson (“Ms. Johnson”) testified next at trial. Ms.
Johnson was a DSS Investigator who was sent to the Andersons’
home on 13 July 2011. Ms. Johnson spoke with the children and
said that Benjamin told her his mouth had been duct-taped and
that his wrists and ankles were tied behind his back in his
bedroom. Antonio said Benjamin was tied up and that “when he’s -14- tied, he gets kicked in the nuts and pecker.” The children also
recounted being locked in their room, being spanked, and being
bound. Ms. Johnson also said the children’s room did not have a
doorknob, and that the room could be secured by its exterior
locking deadbolt. Ms. Johnson said there were exterior locks on
the windows in the children’s room and that the home smelled of
urine. Based on her observations, Ms. Johnson called her
supervisor and asked Defendant to leave the home that evening.
The children were taken to the Child Advocacy Center on 25 July
2011 and were thereafter placed in foster care.
The State next called Matthew Herring (“Mr. Herring”), who
lived with Defendant in 2010. Mr. Herring testified about the
mini-blind rod incident, saying “[Defendant] went in and I heard
a loud pop, and he came back with a curtain rod in his hand.
And then [Benjamin] came out with a -- crying, and had a welt on
his left side on his arm and his chest. Mr. Herring said that
Defendant punished his children “a little bit more excessive[ly]
than what should have been.” Mr. Herring said Defendant would
pin Benjamin and Antonio’s hands behind their back, sit on their
back, and place them face down in pillows to keep them from
screaming. -15- Onslow County Social Worker Scottie Hampton (“Mr. Hampton”)
was the State’s final witness. Mr. Hampton said he was assigned
to work with the children on 12 September 2011. Mr. Hampton
first met Corey and Dakota in foster care on 30 August 2011 and
said they were anxious and looked pale during the visit.
Benjamin was also present and needed encouragement that he would
be safe. Mr. Hampton described Benjamin’s fears and need to
“escape,” such as not being able to close doors and a desire to
exit rooms through windows. Mr. Hampton said Benjamin required
extensive supervision and care, ultimately requiring a
transition into a therapeutic foster home to meet his needs.
Mr. Hampton also said that Violet and Antonio were placed into
traditional foster care homes.
The State rested its case. The State dismissed the charges
of ISBI in 11 CRS 55657 (concerning Corey), 11 CRS 55658
(concerning Antonio), and 11 CRS 55659 (concerning Dakota).
Defendant requested that the trial court dismiss the ISMI charge
and CDM charge in those three cases, which was denied. In 11
CRS 55660 (concerning Violet), the State dismissed the accessory
after the fact to a felony charge. Defendant moved to dismiss
the CDM charge in 11 CRS 55660, which the trial court denied.
In 11 CRS 55661 (concerning Benjamin), the charge of assault -16- with a deadly weapon inflicting serious injury and one of the
two ISMI charges were dismissed. Defendant moved to dismiss the
ISBI charge, the second ISMI charge, and the CDM charge. The
trial court denied Defendant’s motion.
Defendant testified at trial. Defendant said he was a
caregiver to the children and said “I did spank the kids. I
believe in corporal punishment. I was spanked as a child. So I
would use a belt, a hand, a flip flop. I even spanked the
children with a blind rod on their butts before. So, I mean, I
believe in spankings to correct the child when there’s a
problem.” Defendant said he spanked Benjamin from once a day to
two times a day, depending on his behavior. Defendant also said
he was abused as a child by his biological father and that his
father used his “hand, belt, a switch, anything he could find.”
Defendant said he was dishonest with social workers who came to
his home because he was afraid “of being told that I was just
like [Defendant’s father]” and that he was afraid people would
say he was abusive.
Defendant said Antonio and Benjamin “had gotten into the
trash one day and I sat there and went to the room and proceeded
to spank [Antonio] with the blind rod.” Defendant said he -17- usually spanked the children on the [b]utts,” but that he may
have accidentally hit the child on the chest.
Defendant discussed his issues with Benjamin, saying
Benjamin “was more difficult. When I first met him and
everything, I knew he had issues. Me and Janet had arg --
talked about that and things of that nature.” Defendant said he
had to spank Benjamin more than the others. Defendant said
Benjamin had a problem of hitting his brothers and sisters,
necessitating punishment. Defendant testified that he had
“popped [Benjamin] in the mouth” and that he hit Antonio in the
mouth on accident.
Defendant said he never sat on the children except times
where he was “playing around.” Defendant also said “there was
plenty of food in the house.” Defendant said he and Mrs.
Anderson “had to put locks on the door” because the “kids were
getting into things” and to keep the children safe. Defendant
locked the children in their room every night until he had to go
to work. Defendant also said that the children wet the bed and
that the couple tried to use plastic liners to protect the
mattresses, but that the children would play with the plastic
bed lining. Defendant attributed the home’s urine or fecal
smell to the family dog. Defendant also said he did not kick -18- any of the children in the genitals on purpose. Defendant said
he did not physically abuse the children, but that he felt “kind
of bad” about the mini-blind rod incident. Defendant denied
making the children run up and down the driveway carrying
weights.
After testifying, Defendant renewed his motions to dismiss,
which were denied. The jury found Defendant guilty of all the
remaining charges not previously dismissed, except a finding
that Defendant was guilty of the lesser-included charge of
misdemeanor child abuse rather than felony child abuse in 11 CRS
55659. The trial court entered a judgment sentencing Defendant
to an active sentence of 100 to 147 months in prison. Defendant
gave notice of appeal in open court on 12 April 2013.
II. Jurisdiction & Standard of Review
Defendant appeals as of right from a decision of the trial
court. N.C. Gen. Stat. §§ 7A–27(b), 15A–1444(a) (2013).
Defendant first argues that the trial court erred in
denying his motion to dismiss in 11 CRS 55659. “This Court
reviews the trial court’s denial of a motion to dismiss de
novo.” State v. Smith, 186 N.C. App. 57, 62, 650 S.E.2d 29, 33
(2007). “The test to be applied in ruling on a defendant’s
motion to dismiss is whether the State has produced substantial -19- evidence of each and every element of the offense charged, or a
lesser-included offense, and substantial evidence that the
defendant committed the offense.” State v. Chamberlain, ___
N.C. App. ___, ___, 753 S.E.2d 725, 729 (2014). “If substantial
evidence exists supporting [the] defendant’s guilt, the jury
should be allowed to decide if the defendant is guilty beyond a
reasonable doubt.” State v. Fowler, 353 N.C. 599, 621, 548
S.E.2d 684, 700 (2001), cert. denied, 535 U.S. 939 (2002).
Defendant moved to dismiss a charge of felony child abuse
at trial in 11 CRS 55659 at the close of the State’s evidence
and at the trial’s conclusion. The jury was instructed on the
charge of misdemeanor child abuse and Defendant did not object
to the jury instructions. Defendant did not move to set aside
the verdict finding him guilty of misdemeanor child abuse.
The State argues that because Defendant did not move to set
aside the verdict or object to the misdemeanor child abuse jury
instruction, the present case is not properly before this Court.
We disagree and hold that Defendant preserved the issue via his
motion to dismiss at trial. See State v. Powell, 299 N.C. 95,
98, 261 S.E.2d 114, 117 (1980) (“Upon defendant’s motion for
dismissal, the question for the Court is whether there is
substantial evidence (1) of each essential element of the -20- offense charged, or of a lesser offense included therein, and
(2) of defendant’s being the perpetrator of such offense. If so,
the motion is properly denied.”(emphasis added)).
Under de novo review, we examine the case with new eyes.
“[D]e novo means fresh or anew; for a second time, and an appeal
de novo is an appeal in which the appellate court uses the trial
court’s record but reviews the evidence and law without
deference to the trial court’s rulings.” Parker v. Glosson, 182
N.C. App. 229, 231, 641 S.E.2d 735, 737 (2007) (quotation marks
and citations omitted). “Under a de novo review, the court
considers the matter anew and freely substitutes its own
judgment for that of the lower tribunal.” Craig v. New Hanover
Cnty. Bd. of Educ., 363 N.C. 334, 337, 678 S.E.2d 351, 354
(2009) (quotation marks and citation omitted).
Defendant next argues the trial court committed plain error
by violating his constitutional right to cross-examine
witnesses. Defendant did not object to this issue at trial, nor
does he seek review under Rule 2 in his brief. “[A] party’s
failure to properly preserve an issue for appellate review
ordinarily justifies the appellate court’s refusal to consider
the issue on appeal.” Dogwood Dev. & Mgmt. Co. v. White Oak
Transp. Co., 362 N.C. 191, 195–96, 657 S.E.2d 361, 364 (2008). -21- Appellate courts may suspend the requirements of the Rules of
Appellate Procedure when necessary to “prevent manifest
injustice to a party.” N.C. R. App. P. 2. Such suspensions
must be made cautiously, and only in exceptional circumstances.
See Dogwood, 362 N.C. at 196, 657 S.E.2d at 364. Because
Defendant does not invoke Rule 2 in his brief and based on our
review of the record and transcripts, we refrain from invoking
Rule 2, as we do not find that reviewing Defendant’s assignment
of error would prevent manifest injustice. Accordingly,
Defendant’s second assignment of error is without merit.
Defendant’s third and fourth assignments of error concern
admission of testimony into evidence. Both challenged
statements were not objected to at trial. “When an issue is not
preserved in a criminal case, we apply plain error review.”
State v. Streater, 197 N.C. App. 632, 639, 678 S.E.2d 367, 372
(2009). Plain error is explained in State v. Lawrence, 365 N.C
506, 723 S.E.2d 506 (2012):
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 -22- exceptional case, the error will often be one that seriously affects the fairness, integrity or public reputation of judicial proceedings.
Id. at 518, 723 S.E.2d at 334 (quotation marks and citations
omitted). Plain error is “normally limited to instructional and
evidentiary error.” Lawrence, 365 N.C. at 516, 723 S.E.2d at
333. As assignments of error three and four are evidentiary,
plain error review is appropriate.
III. Analysis
A. Motion to Dismiss Defendant was charged with felony child abuse under N.C.
Gen. Stat. § 14-318.4(a) (2013), which 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 physical injury upon or to the child or who intentionally commits an assault upon the child which results in any serious physical injury to the child is guilty of a Class D felony, except as otherwise provided in subsection (a3) of this section.
“Serious physical injury” is defined by the statute as
“[p]hysical injury that causes great pain and suffering. The
term includes serious mental injury.” N.C. Gen. Stat. § 14-
318.4(d)(2) (2013).
Synthesizing the statute into elements, there must be a (i)
parent or other caregiver (ii) supervising a child under 16 that -23- (iii) intentionally (iv) inflicts (v) serious physical injury or
commits an assault on the child. We are only concerned with
elements three, four, and five. Taken in the light most
favorable to the State, substantial evidence shows those
elements are met.
After leaving Defendant’s custody, Dakota was fearful of
many individuals whom he came into contact with. When Dakota
was almost three, he was not toilet trained and could not speak.
Dr. Garrett testified that Dakota was deprived of food and
exhibited extreme developmental delays. Dr. Garrett said Dakota
had a foot infection when she saw him. Dr. Garrett said Dakota
had bruises around his neck, apparently from a dog chain being
wrapped around it. Dr. Cooper testified that Dakota was
significantly developmentally delayed, including an inability to
use utensils, to pick up food with his hands, or to walk. Ms.
Giles testified that Dakota was malnourished with thin hair and
bone structure, had worms, and had a malfunctioning digestive
system. Ms. Giles said Dakota could not speak, was not toilet
trained, and had diarrhea so severe that it required medical
attention. Ms. Everhart testified that she saw Defendant pick
Dakota up and throw him around. Defendant testified that he
ensured that all of the children, including Dakota, were locked -24- in their room at night. Defendant admitted to hitting his
children with whatever was close by, although he did say that he
did not discipline Dakota often. The foregoing, amongst other
testimony, provides substantial evidence of the later three
elements, making the trial court’s denial of Defendant’s motion
to dismiss proper.
B. Plain Error Defendant next argues that the trial court committed plain
error by allowing Dr. Garrett’s testimony that the children were
harmed by a caregiver and that the harm came from Defendant and
Mrs. Anderson, separately and together. We disagree.
Dr. Garrett testified that the examinations performed at
the child advocacy center led her and her team to believe that
“all five of the children had been subjected to repeated
physical abuse and neglect.” Dr. Garrett described the abuse as
severe and causing long-lasting damage to the children. Dr.
Garrett said that “the harm came from a caregiver” and that “if
children are abused by a caregiver, that is more damaging to the
child long-term than damage that comes from an unknown person.”
At the close of Dr. Garrett’s testimony, she stated that “[w]e
characterized that we felt like the children had suffered at
both the hands of Mrs. Anderson and [Defendant] separately, as -25- well as together.” Defendant did not object to any of these
statements at trial.
In State v. Stancil, 355 N.C. 266, 559 S.E.2d 788 (2002),
the Supreme Court held per curiam that it was not plain error to
admit an expert opinion that a victim had in fact been sexually
abused absent a proper foundation where there was “overwhelming”
evidence of the defendant’s guilt, including symptoms of sexual
abuse five days after the incident and intense and immediate
emotional trauma after the incident. State v. Stancil, 146 N.C.
App. 234, 240, 552 S.E.2d 212, 215–16 (2001), per curiam
modified and aff’d, 355 N.C. 266, 559 S.E.2d 788. As such,
because the evidence was “overwhelming” in that case, any error
in admitting improper expert opinion did not amount to plain
error. Id.
State v. Brigman, 178 N.C. App. 78, 632 S.E.2d 498 (2006),
also involved plain error review and held that a physician’s
statement “that these children suffered sexual abuse”
perpetrated by the defendant was improper. Id. at 91–92, 632
S.E.2d at 507. However, this Court again found the other
evidence against the defendant in Brigman was overwhelming and
concluded that the second prong of the plain error standard,
that there was not a “reasonable possibility that a different -26- result would have been reached by the jury.” Id. (citation and
quotation marks omitted).
Defendant cites several cases to support his argument that
Dr. Garrett’s testimony was improper expert testimony of
Defendant’s guilt. See State v. Wilkerson, 295 N.C. 559, 247
S.E.2d 905 (1978); Brigman, 178 N.C. App. 78, 632 S.E.2d 498;
State v. Figured, 116 N.C. App. 1, 446 S.E.2d 838 (1994); State
v. Huang, 99 N.C. App. 658, 394 S.E.2d 279, disc. review denied,
327 N.C. 639, 399 S.E.2d 127 (1990). Defendant’s reliance on
these authorities is misplaced.
In Wilkerson, the Supreme Court held that the physician did
not express any opinion of the defendant’s guilt or innocence.
295 N.C. at 570, 247 S.E.2d at 911 (“Nowhere in the record did
either physician express or purport to express an opinion as to
defendant’s guilt or innocence.”). The Supreme Court cautioned
that the physicians in that case should not have been allowed to
testify that the victim’s injury was caused by any particular
activity or class of activities. Id. However, the evidence
disputed in that case was not reviewed under the plain error
standard, nor were the results in Figured or Huang. Id.;
Figured, 116 N.C. App. at 8, 446 S.E.2d at 843 (holding that
expert opinion testimony was inadmissible without engaging in -27- plain error review); Huang, 99 N.C. App. at 666, 394 S.E.2d at
284 (holding that a psychologist’s testimony that “explicitly
implicated” the defendant was erroneously admitted without
engaging in plain error review). As such, while these cases
found that expert testimony was improperly allowed, the cases
did not consider whether admission of that evidence created a
probable effect upon the verdict, as required under plain error
review.
Here, the situation is analogous to Stancil and Brigman.
While it was error for Dr. Garrett to state that harm was
perpetrated by a caregiver and that Defendant had harmed the
children, we find there was “overwhelming evidence” to suggest
that there was not a reasonable probability that a different
result would have been reached by the jury. The State presented
twelve witnesses at trial, amongst whom included pediatricians,
social workers, therapists, the biological father of three of
the children, two neighbors, and two of Defendant’s roommates.
These witnesses provided extensive evidence, interviews,
eyewitness accounts, and documentation of abuse by Defendant,
catalogued at length supra. For example, Defendant’s roommate
Ms. Everhart testified that Defendant locked his children in
their bedroom and told her not to release them. Ms. Everhart -28- said Defendant threw Dakota around, that he hit Benjamin as much
as twice a day, and that he struck Benjamin and Antonio with a
mini-blind rod on the chest. Extensive evidence was presented
concerning the children’s malnourishment, the smell of urine in
the home, and other incidents of abuse. Further, Defendant
admitted to striking his children and locking the five children
in a single bedroom nightly. As such, overwhelming evidence
existed showing that admission of Dr. Garrett’s testimony would
not have a probable impact on the jury’s verdict, and
Defendant’s argument is overruled.
IV. Conclusion
For the reasons stated above, we find
NO PLAIN ERROR.
Chief Judge Martin and Judge ELMORE concur.
Report per Rule 30(e).