State v. Aine

• Decision Date: 19 January 2016
• Docket Number: No. COA15-490,COA15-490
• Court: North Carolina Court of Appeals
• Parties: STATE OF NORTH CAROLINA, v. EVANS AINE II, Defendant.

STATE OF NORTH CAROLINA, v. EVANS AINE II, Defendant.

No. COA15-490

COURT OF APPEALS OF NORTH CAROLINA

January 19, 2016

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.

Cumberland County, No. 12CRS058306

Appeal by defendant from Judgment entered 25 August 2014 by Judge James G. Bell in Cumberland County Superior Court. Heard in the Court of Appeals 19 October 2015.

Attorney General Roy Cooper, by Assistant Attorney General Derrick C. Mertz, for the State.

Marilyn G. Ozer for defendant.

ELMORE, Judge.

Evans Aine II (defendant) appeals from his first-degree murder conviction and sentence to life imprisonment without parole. After careful review, we find no error.

I. Background

At the time of the events in question, defendant and his wife had three children and lived in Cumberland County. Defendant met Shontice Demus (Demus) at Walmart and they had a brief affair. Shortly after the affair, Demus became pregnant and informed defendant that he was the father. Defendant denied Demus's claim but never requested a paternity test. Demus gave birth to Kaeden in March 2011, and defendant cared for Kaeden once in April 2011 and again in February 2012. Also in February 2012, Tanika Murray (Murray) became Kaeden's primary guardian. On Friday, 8 June 2012, Murray brought Kaeden to Demus's home for the weekend, and Demus asked defendant if he wanted to spend time with Kaeden. Defendant and his wife brought Kaeden back to their home and agreed to bring Kaeden back to Demus the following day around 7:30 p.m. Demus apparently did not answer defendant's calls on Saturday evening, and as a result Kaeden remained at defendant's home. On Sunday, Demus stated that Kaeden could stay with defendant for the week.

Defendant's testimony showed the following: On Sunday, 10 June 2012, when defendant was bathing Kaeden and his other three children in the shower, Kaeden stood up and hit his head on the corner of a tile. Defendant stated, "Everything was fine, you know. It was just bleeding." On Monday morning, 11 June 2012, defendant's wife left the home at 8:00 a.m. to go to a doctor's appointment, and Kaeden woke up between 8:15 and 8:30 a.m. After Kaeden woke up, defendant "filled his sippy cup up," and Kaeden "chugged it." Defendant "was trying to tell him wasn't no more," [sic] but Kaeden was "fussing at [him] a little bit." Defendant "put some more in there, but he drank that too and then that's when he went off after mydaughter's drink." Defendant "[g]ot him at least calmed down," and then defendant put a load of laundry in the washing machine. Defendant heard crying, so he walked toward the den and saw Kaeden crying. Defendant stated, "[M]y daughter began to walk towards me and Kaeden jumped up and, you know, was grabbing on her." Defendant told his daughter to go in the other room and put a movie on for her thirteen-month-old brother and "[g]et him situated." Defendant's four-year-old son followed.

Defendant testified that he took Kaeden outside to get some fresh air and that Kaeden "was a little fussy." Kaeden was wearing a diaper and was barefoot. Defendant was on the steps to the house, and Kaeden was walking on the driveway when defendant "heard the head smack against the ground." Defendant testified that when Kaeden got up, he started to stumble backward, lost his balance, tripped up, looked toward defendant, and then fell backward and hit the ground. Defendant stated that Kaeden had scratches on his forehead, his back, the back of his leg, and he had a busted lip, so defendant took him inside and put him into the bathtub. Defendant took Kaeden's diaper off and turned on the water. Kaeden was crying. Defendant ran to the kitchen to get a bottle of peroxide. Defendant stated that he cleaned Kaeden off, but "he still was crying, little whiney from the fall[.]" Defendant "[s]plashed some water on him" and "[t]hat woke him up immediately."

The telephone rang, and defendant went into the kitchen to answer.Defendant talked for thirty seconds to one-and-a-half minutes. He started to walk back toward the bathroom with an ice tray when the telephone rang again. Defendant returned to the kitchen to answer. When defendant walked back to the bathroom, he stated that Kaeden was "sitting up but bent forward." When defendant went to pick Kaeden up he was limp. Defendant applied some pressure and water came out of Kaeden's mouth. Defendant then sat Kaeden on defendant's bed, and defendant called his wife. When defendant returned to the bedroom, Kaeden was lying flat on his back. Defendant began to perform CPR, and Kaeden "had so much water coming out." Defendant testified, "That's when I started hitting everywhere with everything I had. I want him to get up. I hit him with everything I had."

The State's evidence tended to show the following: Defendant called 911 around 9:23 a.m. After over a minute describing his address, phone number, name, that he is watching somebody's child that "could be my child it might, it might not be," and that "we were outside, we were walking on the cement," defendant stated, "He's breathing, but he's not breathing that well." After nearly two minutes, defendant stated that "his eyes are open right now but they are closing back." Defendant then reported that Kaeden was not breathing. When the operator asked if the child had any injuries, defendant stated that "he fell face first onto the cement" and "he has scratches on his back."

When paramedic Carl Strange arrived on the scene at 9:31 a.m., Kaeden wasnot breathing and did not have a pulse. Strange testified, "As I approached the child, I grabbed his leg to move him out of the way and I noticed his whole body moved with it, which told me it seemed like it was rigor." Strange stated that rigor mortis sets in "from an hour to two hours onset." Strange also testified that there was bruising around the face and the lower extremity, and "[t]he child was dry. I noted in my trip ticket that there was no fluid around the child, nothing on the floor. When I put the laryngoscope, which is a blade that we place into the airway to facilitate intubation, there was [sic] no secretions. There was no fluid inside the mouth at all." Paramedics started life-saving procedures and transported Kaeden to the hospital.

Dr. Warees Muhammad, a doctor in the emergency pediatric department at Cape Fear Valley Hospital, testified that when Kaeden arrived at the hospital, he was not breathing by himself, his heart was not beating by itself, and "he was pretty much already stiff[.] . . . You could lift him with one hand and his extremities were already in rigor[.]" Kaeden was pronounced dead at 10:05 a.m. Dr. Muhammad stated, "Rigor mortis or rigor is a state or condition when a person has been deceased for maybe two hours or above." He stated that Kaeden had bruising on his lip, forehead, the back of his right arm, around his ribcage, his forearm, and his inner thighs, as well as two cuts above his right eyebrow, but no bruises or cuts on his hands or knees. He testified that in his opinion, the bruises "could not come from a simple fall. That's why we estimated it was probably most likely nonaccidental trauma orchild abuse."

Dr. Eric Duval, an expert in forensic pathology, testified,

The undersurface of the jaw was bruised and red and the lips showed evidence of blunt injury. They were lacerated or they were split and a bit swollen. The right side of the face exhibited red bruising and the posterior part of the head or back here exhibited some bruising as well.

Dr. Duval further stated, "[T]he back, the flanks and the shoulders were covered with innumerable bruises. Some of them were discrete and several of them were confluent. A lot of them had a linear type pattern to them. These are most prominent over the sides of the back and the shoulders." The following occurred during Dr. Duval's testimony:

Q. What do you mean by linear?

A. Linear means a line. So some of these bruises had the shape of a line.

Q. You describe a tram track pattern. Can you tell the jury what that is?

A. Yes. A tram track pattern is a pattern of bruising that represents two parallel linear lines, sort of like a railroad track.

Q. Typically how do you see that being made?

A. These types of bruises are typically sustained when some type of long, straight, rigid object is used, like a rod or a stick or a pipe or a bat.

Dr. Duval also found a retroperitoneal hemorrhage, which "can occur when there'ssome type of blunt force trauma usually to the front of the abdomen which compresses the abdominal wall and the organs and impacts the spinal column." When asked if there was anything in Kaeden's stomach, Dr. Duval stated there was about five milliliters of bile like fluid.

Murray testified that Kaeden did not have any marks, cuts, or bruises on his body on Thursday, 7 June 2012, the last day she saw Kaeden alive. Demus also testified that Kaeden did not have any cuts, bruises, or injuries on Friday, 8 June 2012, the day Kaeden went to stay with defendant.

Defendant was arrested on 28 June 2012 and indicted on 1 July 2013 for one count of first-degree murder and one count of felonious child abuse inflicting serious bodily injury. On 25 August 2014, a jury found defendant guilty of first-degree murder based on (1) malice, premeditation, and deliberation, and (2) the first-degree felony murder rule. It also found defendant guilty of felonious child abuse inflicting serious bodily injury. The trial court sentenced defendant to life in prison without parole based on the first-degree murder verdict, and it arrested judgment on the felonious child abuse inflicting serious bodily injury verdict.

II. Analysis

A. Jury Instruction on Motive

Defendant argues that the trial court erred in refusing to instruct the jury on motive because the...