State v. Allen, COA03-1369.
| Decision Date | 07 September 2004 |
| Docket Number | No. COA03-1369.,COA03-1369. |
| Citation | 601 S.E.2d 299,166 NC App. 139 |
| Court | North Carolina Court of Appeals |
| Parties | STATE of North Carolina v. Levar Jamel ALLEN. |
Attorney General Roy Cooper, by Assistant Attorney General Lisa Granberry Corbett, for the State.
Richard E. Jester, Louisburg, for defendant-appellant. BRYANT, Judge.
Jamel Allen Levar (defendant) appeals a judgment dated 31 January 2003 entered consistent with a jury verdict finding him guilty of felonious child abuse inflicting serious bodily injury.
The State's evidence tended to show the following: On 7 November 2001, B.K.C. (the mother) lived with her 10-month-old child, and defendant (the child's father). Around 1:00 p.m., B.K.C. went to work and left the child in defendant's care. At about 4:15 p.m., defendant called B.K.C. at work, screaming and yelling that the child had been burned. Defendant said that B.K.C. had left her curling iron on in the bathroom and the child had burned himself when he somehow pulled the curling iron down from the bathroom counter. B.K.C. left work and arrived home around 5:00 p.m.
When B.K.C. arrived home, defendant opened the door and was standing there with a diaper bag packed. B.K.C. found the child laying on the bed. The child appeared in shock, shaking, and scared. B.K.C. discovered that defendant had put ointment on the burn in the child's hand and had covered that burn using a homemade bandage. Defendant helped B.K.C. and the child into the car, but did not go to the hospital with them. At the hospital, B.K.C. removed the child's clothing and found round burns on the child's stomach and knee, in addition to the burn she previously discovered on his hand. The burns were treated and the child was released that day.
At the treating physician assistant's request, B.K.C. later took the child to be seen by a plastic surgeon, and on 4 December 2001, a skin graft was performed on the child's hand. The child was in the hospital for one week following the skin graft. Thereafter, the child had trouble crawling due to the burns on his hand and knee. Approximately one year later (January 2003), the child remained unable to use the pinky finger on that hand, and had visible scars on his knee.
At trial, Thomas McLaughlin, P.A. testified that he was the physician's assistant who treated the child's burns on 7 November 2001. McLaughlin had approximately 27 years experience as a physician's assistant and had worked at the hospital emergency room for six years. Previously, he had worked in the emergency room at the University Hospital in Charlotte, where his duties included the diagnosis and treatment of illnesses, injuries and wounds. During the course of his career, he maintained the required annual 100 hours of continuing medical education (most in emergency room treatment), and had treated thousands of patients, including numerous patients with varying degrees of burns.
McLaughlin found that the child had either second or third degree burns on the palm of his hand, wrist, stomach, and knee. Based on the severity of the burn to the hand, he referred the child to a plastic surgeon. McLaughlin also reported the incident to the Gaston County Department of Social Services (DSS).
McLaughlin opined that the burns were inconsistent with a burn suffered from grabbing a curling iron as the burns were round and not linear in shape. Based on the severity of the burns and the belief that a person would not hold on to a hot object long enough to cause burns that deep, McLaughlin concluded that the burns were caused by someone holding an object on the child. McLaughlin also concluded that the burns were most likely caused by a round object.
At trial, defendant testified, denying allegations that he intentionally injured the child. He also testified that he was very upset at police and DSS efforts to interrogate him. He did, however, accept responsibility for the accidental burning, acknowledging that if he had been more vigilant in watching the child, the injury would not have occurred.
The issues on appeal are whether the trial court erred in: (I) permitting Thomas McLaughlin, P.A. to testify as to the cause of the child's injuries; (II) failing to dismiss the charge; (III) denying defendant's motion to dismiss for lack of a speedy trial; (IV) admitting State's exhibit 32 (a baby bottle) into evidence; (V) its ruling that the DSS file did not contain exculpatory evidence; and (VI) imposing a sentence in the aggravated range in violation of the Sixth Amendment and Blakely v. Washington.
First, defendant argues that the trial court erred in permitting Thomas McLaughlin, P.A. to testify as to causation of the child's injuries in that he was not properly qualified as an expert, the defendant was not allowed to voir dire him as to experience, and McLaughlin did not have the requisite training to give causation testimony.
Our Supreme Court has held that "`[w]hether the witness has the requisite skill to qualify him as an expert is chiefly a question of fact.'" State v. Zuniga, 320 N.C. 233, 252, 357 S.E.2d 898, 911 (1987) (citation omitted). "[T]he trial court's decision concerning whether or not a witness has qualified as an expert is ordinarily within the court's sound discretion," Maloney v. Wake Hosp. Sys., 45 N.C.App. 172, 175, 262 S.E.2d 680, 682 (1980) (citing Edwards v. Hamill, 266 N.C. 304, 145 S.E.2d 884 (1966)), and will not be disturbed unless the decision is not supported by the evidence, Zuniga, 320 N.C. at 252, 357 S.E.2d at 911. In addition, it is not necessary that an expert be a specialist or even licensed in a specific profession to provide expert testimony on the subject at issue. See Zuniga, 320 N.C. at 252,
357
S.E.2d at 911; State v. Evangelista, 319 N.C. 152, 163-64, 353 S.E.2d 375, 383-84 (1987) (citing State v. Phifer, 290 N.C. 203, 225 S.E.2d 786 (1976)); State v. Bullard, 312 N.C. 129, 140, 322 S.E.2d 370, 376 (1984).
Here, McLaughlin testified that he had approximately 27 years experience as a physician's assistant and had worked at the hospital emergency room for six years. Previously, he had worked in the emergency room at the University Hospital in Charlotte, where his duties included the diagnosis and treatment of illnesses, injuries and wounds. During the course of his career, he maintained the required annual 100 hours of continuing medical education (most in emergency room treatment), and had treated thousands of patients, including numerous patients with varying degrees of burns.
Significant evidence supports the trial court's decision to qualify McLaughlin as an expert witness. In addition, the record is void of any evidence that defendant requested to voir dire the witness; and our Court has been unable to locate any authority mandating voir dire particularly absent request by one of the parties. This assignment of error is overruled.
Second, defendant argues that the trial court erred in failing to dismiss the charge.
A motion to dismiss is properly denied if "there is substantial evidence (1) of each essential element of the offense charged and (2) that defendant is the perpetrator of the offense." State v. Lynch, 327 N.C. 210, 215, 393 S.E.2d 811, 814 (1990). "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." State v. Franklin, 327 N.C. 162, 171, 393 S.E.2d 781, 787 (1990). "When ruling on a motion to dismiss, all of the evidence should be considered in the light most favorable to the State, and the State is entitled to all reasonable inferences which may be drawn from the evidence." State v. Davis, 130 N.C.App. 675, 679, 505 S.E.2d 138, 141 (1998).
N.C. Gen.Stat. § 14-318.4(a3) defines felony child abuse inflicting serious bodily injury as:
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 C felony. "Serious bodily injury" is defined as bodily 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.
In the instant case, the State's evidence tended to show that defendant is the child's father and he was supervising the child on the day the injuries were inflicted. They were home alone. The child was 10 months old at that time. McLaughlin testified that the burns were caused by someone (intentionally) holding a hot object on the child. In addition, the second or third degree burn to the child's hand was severe enough that McLaughlin had to refer the child to a plastic surgeon for treatment.
On 4 December 2001, a skin graft was performed on the child's hand. The child was in the hospital for one week following the skin graft. Thereafter, the child had trouble crawling due to the burns on his hand and knee. Approximately one year later (January 2003), the child remained unable to use the pinky finger on that hand, and had visible scars on his knee.
There is sufficient evidence as to each element of the offense charged and that defendant was the perpetrator of the offense. This assignment of error is overruled.
Third, defendant argues that the trial court erred in denying his motion to dismiss for lack of a speedy trial in violation of the Sixth Amendment of the United States Constitution and Article I, Section 18 of the North Carolina Constitution.
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