State v. BohannonÂ

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA15-389
Filed: 7 June 2016
Forsyth County, Nos. 12 CRS 60962, 13 CRS 4697
STATE OF NORTH CAROLINA
v.
CHALMERS GRAY BOHANNON, JR.
Appeal by defendant from judgment entered 27 March 2014 by Judge Edwin
G. Wilson in Forsyth County Superior Court. Heard in the Court of Appeals 6 October
2015.
Attorney General Roy Cooper, by Assistant Attorney General Jennie Wilhelm
Hauser, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate Defender, John F.
Carella, for defendant.
CALABRIA, Judge.
Chalmers Bohannon (”defendant”) appeals from a judgment entered upon a
jury verdict finding him guilty of felony child abuse inflicting serious bodily injury.
For the reasons that follow, we find no error.
STATE V. BOHANNON
Opinion of the Court
I. Background
The State presented evidence that on the evening minor victim A.B.1 sustained
injuries, he was approximately three months old and he lived with his mother,
Brittany Fulp (“Fulp”), and his father, defendant, in a small apartment located in
Winston-Salem. During the early evening hours of 7 September 2012, Fulp placed
A.B. in his crib and he went to sleep. Since A.B. was asleep and defendant was home,
Fulp walked to a nearby drugstore. When Fulp returned to the apartment
approximately thirty to forty-five minutes later, A.B. was propped up on defendant
and Fulp’s bed; he was whimpering but was unable to cry. A.B.’s face and chest were
bruised, and his eye was swollen. When Fulp asked defendant what happened, he
responded that he was not sure. After settling A.B., Fulp laid him down for the night
and planned to seek medical assistance if he appeared worse the next day. A.B. slept
through the night for the first time in his life. Although Fulp checked on A.B. the
following morning, she could not properly assess his condition due to the dim lighting
around his crib. Sometime during the evening hours of 8 September 2012,
defendant’s mother, defendant, and Fulp transported A.B. to the hospital to have his
injuries evaluated.
1 The minor victim’s initials will be used to protect his identity in conformity with N.C. R.App.
P. 3.1(b) and 4.
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STATE V. BOHANNON
Opinion of the Court
In the pediatric emergency department, A.B. was first assessed by a triage
nurse. He was then further examined by Dr. David Klein, an emergency medicine
specialist, and Dr. Coker, the chief resident at the hospital. Dr. Klein observed
bruising in the following areas: A.B.’s left forehead; the right side of his face going
towards the ear; the middle portion of the right side of his face; the upper left chest
going toward his shoulder; and the right side of his chest going toward his upper
abdomen. When the physicians asked defendant and Fulp what happened to A.B,
neither one provided an answer. After remaining in the emergency room for fifteen
minutes, defendant left the hospital and went home.
While at the hospital, A.B. underwent a series of diagnostic tests which
included a CAT scan and an MRI of his head as well as x-rays of all his bones. Dr.
Lauren Golding was the attending pediatric radiologist on duty when A.B. was
brought to the hospital on 8 September. She discovered that A.B. had sustained a
broken right tibia (i.e., leg fracture). A.B.’s leg injury was thought to be the result of
a “buckle fracture,” an injury that occurs when a bone “buckles” after being subjected
to substantial force or pressure. Buckle fractures in infants can result from
significant twisting or torqueing of the bone. Follow-up x-ray scans (on 25 September
2012) revealed that A.B. had also sustained a buckle fracture to his left tibia. A.B.’s
MRI revealed subarachnoid hemorrhaging consistent with the external bruising on
both sides of his brain. Subarachnoid hemorrhages refer to bleeding under the
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STATE V. BOHANNON
Opinion of the Court
arachnoid, or innermost, layer of the brain. At trial, Dr. Golding testified that
bleeding around the brain is a sign of significant trauma and can result in acute
illness or death depending on the volume of the bleeding and the increase in
intracranial pressure. A.B. was eventually admitted to the hospital for orthopedic
surgery, general observation, and physical protection. He was hospitalized for two
days.
Since neither Fulp nor defendant could explain what happened to A.B.,
hospital staff reported suspected child abuse to Forsyth County’s Child Protective
Services (FCCPS) and local law enforcement. As a result, Winston-Salem Police
Officer Aaron Jessup (“Officer Jessup”) was dispatched to the hospital, where he
found medical staff with A.B. in his room. Officer Jessup then located Fulp in the
parking lot where it appeared she was trying to leave. Fulp told Officer Jessup she
was not in the room because she was frightened and concerned for defendant. She
also reported her version of events from the night of 7 September 2012. After
continued questioning, Fulp informed the police officer that defendant was at their
apartment. In following up on the information Fulp provided, Officer Jessup went to
the family’s apartment and interviewed defendant, who stated that he was cooking
in the kitchen on the night of 7 September 2012 when A.B. fell off the couch and
landed face down on the carpeted floor.
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STATE V. BOHANNON
Opinion of the Court
On 10 September 2012, Dr. Meggan Goodpasture, director of the hospital’s
Child Abuse and Neglect Team, conducted a complete physical exam on A.B. and
observed that he had “significant bruising” on his chest, both cheeks, and his face
extending from his left ear to his right ear. Upon A.B.’s release to FCCPS, hospital
staff recommended that social workers have A.B. examined by a neurosurgeon in two
to three weeks.
On 25 February 2013, the State indicted defendant and charged him with three
counts of felony child abuse inflicting serious physical injury. Subsequently, the State
offered a plea arrangement pursuant to which defendant could “plead as indicted” or
face indictments on additional charges. After defendant rejected the plea offer, the
State obtained additional indictments charging him with felony child abuse inflicting
serious bodily injury and habitual felon status. The case proceeded to trial and, on
27 March 2014, a jury returned verdicts finding defendant guilty on two counts of
felony child abuse inflicting serious physical injury (a Class E felony) for A.B.’s broken
tibias and bruising, and one count of felony child abuse inflicting serious bodily injury
(a Class C felony) for A.B’s brain injury. The trial court sentenced defendant to 127
to 165 months’ imprisonment for the Class C felony and 44 to 65 months for each of
the Class E felonies. The three sentences were ordered to run consecutively in the
North Carolina Department of Public Safety, Division of Adult Correction. Defendant
appeals.
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STATE V. BOHANNON
Opinion of the Court
II. Analysis
A. Motion to Dismiss
Defendant first asserts that the trial court erred by denying his motion to
dismiss because the State presented insufficient evidence of a serious bodily injury
as required by N.C. Gen. Stat. § 14-318.4(a3). We disagree.
We review a 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). “Upon defendant’s motion for
dismissal, the question for the [c]ourt is 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. If so, the motion is
properly denied.” State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451, 455 (2000), cert.
denied, 531 U.S. 890, 148 L. Ed. 2d 150 (2000). “Substantial evidence is such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.”
Smith, 186 N.C. App. at 62, 650 S.E.2d at 33 (citation omitted). “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
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STATE V. BOHANNON
Opinion of the Court
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). Contradictions and discrepancies in the evidence
“are for the jury to resolve.” State v. Barnes, 334 N.C. 67, 75, 430 S.E.2d 914, 918
(1993).
Felonious child abuse inflicting serious bodily injury is defined by subsection
14-318.4(a3), which provides that
[a] parent or any other person providing care to or
supervision of a child less than 16 years of age who
intentionally inflicts any serious bodily injury to the child
or who intentionally commits an assault upon the child
which results in any serious bodily injury to the child, or
which results in permanent or protracted loss or
impairment of any mental or emotional function of the
child, is guilty of a Class C2 felony.
N.C. Gen. Stat. § 14-318.4(a3) (2012). A “serious bodily injury” is a “[b]odily injury
that creates a substantial risk of death or that causes serious permanent
disfigurement, coma, a 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.” N.C. Gen. Stat. § 14-
318.4(d)(1).
2 2013 N.C. Sess. Law 35, section 1, effective 1 December 2013, upgraded a violation of N.C.
Gen. Stat. § 14-318.4(a3) from a Class C felony to a Class B2 felony. Defendant was properly indicted
and convicted under the statute as it existed at the time of A.B.’s injuries.
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STATE V. BOHANNON
Opinion of the Court
The separate, lesser offense of felonious child abuse inflicting serious physical
injury is defined under N.C. Gen. Stat. § 14-318.4(a), which states:
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 E3 felony, except as otherwise
provided in subsection (a3) of this section.
N.C. Gen. Stat. § 14-318.4(a) (2012). A “serious physical injury” is defined as a
“[p]hysical injury that causes great pain and suffering. The term includes serious
mental injury.” N.C. Gen. Stat. § 14-318.4(d)(2).
In order to prove felonious child abuse inflicting serious bodily injury, the State
must prove that: “(1) the defendant was the parent of the child; (2) the child had not
reached [sixteen years of age]; and (3) the defendant intentionally and without
justification or excuse inflicted serious bodily injury.” State v. Wilson, 181 N.C. App.
540, 543, 640 S.E.2d 403, 405-06 (2007). “[W]hen an adult has exclusive custody of a
child for a period of time during which the child suffers injuries that are neither self-
inflicted nor accidental, there is sufficient evidence to create an inference that the
adult intentionally inflicted those injuries.” State v. Liberato, 156 N.C. App. 182, 186,
576 S.E.2d 118, 120-21 (2003).
3 2013 N.C. Sess. Law 35, section 1, effective 1 December 2013, upgraded a violation of N.C.
Gen. Stat. § 14-318.4(a) from a Class E felony to a Class D felony.
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STATE V. BOHANNON
Opinion of the Court
In the instant case, it is undisputed that defendant is A.B.’s father and that
A.B. is less than sixteen years of age. Defendant had exclusive custody over A.B. at
the time that A.B. was injured, and defendant does not challenge that he
intentionally caused those injuries. Therefore, the only remaining issue is whether
A.B.’s subarachnoid hemorrhaging constitutes a “serious bodily injury” under N.C.
Gen. Stat. § 14-318.4(d)(1).
This Court has previously noted that “the definition of ‘serious bodily injury’
in this statute mirrors the definition of the same in [N.C. Gen. Stat.] § 14-32.4[,]” our
assault inflicting serious bodily injury statute. State v. Lowe, 154 N.C. App. 607, 615,
572 S.E.2d 850, 856 (2002). In the context of our assault statute, the term “requires
proof of more severe injury than the ‘serious injury’ element of [assault with a deadly
weapon with intent to kill or inflicting serious injury].” Id. However, neither
subdivision 14-318.4(d)(1) nor case law further define the term in the context of
felonious child abuse, nor do they explain what constitutes a “substantial risk of
death.” See N.C. Gen. Stat. § 14-318.4(d)(1). Even so, it is clear that subsection 14-
318.4(a3) is violated whenever a parent or caretaker inflicts a bodily injury on a minor
that “creates” such a risk. See id. As a result, the age and particular vulnerability of
a minor victim must factor into this analysis.
Defendant argues “the State failed to present evidence that the bleeding
[around A.B.’s brain] created ‘a substantial risk of death’ or caused ‘serious
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STATE V. BOHANNON
Opinion of the Court
permanent disfigurement, a 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 resulted in ‘prolonged hospitalization.’ ” According to defendant,
since A.B. did not actually suffer acute consequences from his subarachnoid
hemorrhages, his brain injury never presented a substantial risk of death. In making
this argument, defendant portrays A.B.’s hospitalization as one based on “protection,”
not “treatment,” and he notes that A.B. was released only “with a prescription for
Tylenol, if needed.” Based on this characterization of the evidence, defendant asks
us to remand for entry of judgment on the lesser offense of felony child abuse inflicting
serious physical injury.
In response, the State contends that this Court’s holding in State v. Wilson,
181 N.C. App. 540, 640 S.E.2d 403 (2007) should control our analysis in this case.
Wilson is distinguishable, however, because the defendant in that case challenged the
sufficiency of the evidence proving “that [she] intentionally abused her child[,]” rather
than the evidence offered to prove a serious bodily injury. Id. at 542, 640 S.E.2d at
405. Furthermore, the Wilson defendant was convicted of a single count of felonious
child abuse inflicting serious bodily injury for a series of injuries including first and
second degree burns caused by scalding water and cigarette butts; “chronic signs of
neglect”; and a blood clot appearing on the right side of the child’s brain. Id. at 541,
640 S.E.2d at 401. By contrast, in the instant case, defendant was convicted of three
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STATE V. BOHANNON
Opinion of the Court
counts of felonious child abuse—two inflicting serious physical injury (for the
fractured tibia and bruises appearing on A.B.’s face, ear, and chest), and one inflicting
serious bodily injury (for the subarachnoid hemorrhages). Consequently, the “serious
bodily injury” in Wilson was actually a series of injuries that included a subdural
hematoma, rather than the brain injury alone.
Although Wilson does not control our analysis in this case, we nevertheless
hold that there was sufficient evidence to submit to the jury the question of whether
A.B. suffered a serious bodily injury. Our examination of the record evidence,
considered in the light most favorable to the State, shows that A.B. was a normal,
healthy baby who had no prior medical problems. Dr. Klein, the attending physician
in the hospital’s pediatric emergency department on 8 September 2012, testified
about his examination of A.B. He stated that a CAT scan revealed an abnormality in
A.B.’s skull, but the radiologist could not determine at that time whether “that was a
separation due to a break [in the skull] or a separation due to a slow closing of those
bones” forming the area commonly referred to as the “soft spot” on a baby’s head.
After A.B. was admitted to the hospital, Dr. Golding examined A.B.’s MRI, which
revealed multiple areas of hemorrhaging on his brain. Dr. Golding testified that
bleeding on the brain could lead to a number of issues, including “developmental
delays” or even “acute illness and death” when there is significant volume and
increasing intracranial pressure. Similarly, Dr. Goodpasture testified that bleeding
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STATE V. BOHANNON
Opinion of the Court
around the brain is “certainly a sign of serious trauma” that, in infants, can cause
“irritability, seizures, and . . . even . . . life-threatening events[.]” Although the
subarachnoid hemorrhaging did not appear to be immediately life-threatening when
A.B. was evaluated at the hospital, Dr. Goodpasture stated that it is very difficult to
predict the full effect of brain injuries in infants because “an infant’s brain at this
time is growing and developing a tremendous amount, and . . . injury to their brain
at this age could be more traumatic or damaging than to [an adult’s].” She further
testified that A.B.’s brain injury would require him to be continuously monitored for
dangerous side effects down the road. Defendant did not offer any evidence.
When viewed in the light most favorable to the State, the evidence was
sufficient to withstand defendant’s motion to dismiss. More specifically, based on the
facts of this case, we believe the record demonstrates that A.B.’s brain injury created
a substantial risk of his death. The evidence suggests that defendant intentionally
inflicted serious trauma to the head of A.B., thereby causing subarachnoid
hemorrhaging. Indeed, the force was so strong as to crack A.B.’s skull, or at the very
least, cause bleeding in the brain of an infant so young that his “soft spot” had not yet
closed. This significant, internal bleeding clearly had the potential to kill A.B. and
that risk was created when the brain injury was inflicted. The dangers inherent in
such a situation—one where some action or mechanism delivered multiple, vicious
blows to a three-month-old baby’s skull—could be inferred by the fact finder as a
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STATE V. BOHANNON
Opinion of the Court
matter of common knowledge. Given the uncontroverted testimony of three expert
witnesses who personally treated A.B., we conclude that there was sufficient evidence
from which a reasonable jury could find that A.B.’s brain injury constituted a “serious
bodily injury” in accordance with N.C. Gen. Stat. § 14-318.4(a3). Thus, the trial court
did not err in denying defendant’s motion to dismiss due to insufficiency of the
evidence.
B. The State’s Closing Argument
Defendant next argues that the trial court erred in failing to intervene ex mero
motu during the State’s closing argument. We disagree.
Initially, we note that defendant did not object to the State’s closing at trial.
The standard of review for assessing alleged improper
closing arguments that fail to provoke timely objection
from opposing counsel is whether the remarks were so
grossly improper that the trial court committed reversible
error by failing to intervene ex mero motu. Under this
standard, only an extreme impropriety on the part of the
prosecutor will compel this Court to hold that the trial
judge abused his discretion in not recognizing and
correcting ex mero motu an argument that defense counsel
apparently did not believe was prejudicial when originally
spoken. Defendant must show that the prosecutor’s
comments so infected the trial with unfairness that they
rendered the conviction fundamentally unfair.
State v. Jones, 231 N.C. App. 433, 437, 752 S.E.2d 212, 215 (2013) (internal citations,
quotation marks, and brackets omitted), disc. review denied, 367 N.C. 322, 755 S.E.2d
616 (2014).
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STATE V. BOHANNON
Opinion of the Court
It is well established that “[s]tatements made during closing arguments to the
jury are to be viewed in the context in which the remarks are made and the overall
factual circumstances to which they make reference.” State v. Harris, __ N.C. App.
__, __, 763 S.E.2d 302, 311 (2014) (citation omitted). “As a general proposition,
counsel are allowed wide latitude in closing arguments, so that a prosecutor is
entitled to argue all reasonable inferences drawn from the facts contained in the
record.” Id. (citations omitted). “Unless the defendant objects, the trial court is not
required to interfere ex mero motu unless the arguments stray so far from the bounds
of propriety as to impede the defendant’s right to a fair trial.” State v. Small, 328
N.C. 175, 185, 400 S.E.2d 413, 418 (1991) (quotation marks and citations omitted).
Nor is the trial court required “to intervene ex mero motu where a prosecutor makes
comments during closing argument which are substantially correct shorthand
summaries of the law, even if slightly slanted toward the State’s perspective.” State
v. Barden, 356 N.C. 316, 366, 572 S.E.2d 108, 140 (2002) (citation omitted). Moreover,
a prosecutor’s misstatement of the law may be cured by the trial court’s subsequent
correct instructions. Id.
Here, defendant challenges the following statement made by the prosecutor
during her closing argument:
And I contend you’ve heard evidence from Dr. [Klein], Dr.
Golding, and Dr. Goodpasture about the concerns about
infants having subarachnoid hematoma [sic] or bleeding in
the subarachnoid space; that infants are particularly
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STATE V. BOHANNON
Opinion of the Court
vulnerable when they’re this age, and that that kind of
bleeding can lead to death, developmental delays, you
know, brain disfigurement, a number of things; so much so
that they have to monitor infants for a significant period of
time to make sure that they develop normally and that they
meet their milestones. And so what’s required in that is a
substantial risk. The State is not required to prove that
[A.B.] actually suffered death or disfigurement or
whatever. But I would contend to you that if you have a
bleed in your brain, which is the organ that controls all
your bodily functions, that that bleeding can lead to
swelling, which cuts off oxygen, which could lead to death,
which could lead to impairment, which could lead to delays,
all kinds of significant problems down the road.
Defendant argues that this statement “misrepresented the State’s burden of
proof and asked the jury to find that [A.B.] suffered a ‘serious bodily injury’ if it
concluded that there was some possibility of future impairment or disfigurement.”
Further, defendant argues that the trial court’s failure to intervene and correct the
State’s misrepresentations deprived defendant of his right to a fair trial.
During closing argument, the prosecutor stated that she must prove
“substantial risk” that “could lead” to prolonged or permanent injuries. The jury
charge, however, clarified the law and the State’s burden of proof:
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: . . . 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
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STATE V. BOHANNON
Opinion of the Court
permanent disfigurement, a 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.
Both the State and defendant approved the jury charge before it was delivered.
Moreover, following a question from the jury, the judge clarified the definitions of
“serious bodily injury” and “serious physical injury” under the statute. This request
for clarification manifested the jury’s understanding that the State’s burden of proof
for the charge stemming from A.B.’s head injury was different than those related to
his bruises and broken tibias. Given the opportunity to convict defendant of the lesser
charge of felonious child abuse inflicting serious physical injury, the jury nevertheless
determined that A.B.’s subarachnoid hemorrhaging constituted a “serious bodily
injury.”
In light of the “overall factual circumstances” of this case, Harris, __ N.C. App.
at __, 763 S.E.2d at 311, we conclude that the prosecutor’s closing arguments were
not “so grossly improper” as to “infect[] the trial with unfairness” and “render[] the
conviction fundamentally unfair.” Jones, 231 N.C. App. at 437, 752 S.E.2d at 215.
Therefore, the trial court did not err by failing to intervene ex mero motu to address
the prosecutor’s allegedly improper closing remarks.
III. Conclusion
Based on the foregoing analysis, we hold that the trial court did not err in
denying defendant’s motion to dismiss for insufficient evidence the charge of felonious
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Opinion of the Court
child abuse inflicting serious bodily injury. Additionally, we hold that the trial court
did not err in failing to intervene ex mero motu during the prosecutor’s closing
argument.
NO ERROR.
Judges BRYANT and ZACHARY concur.
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