State v. Cheeks, COA18-884

• Decision Date: 01 October 2019
• Docket Number: No. COA18-884,COA18-884
• Citation: 833 S.E.2d 660,267 N.C.App. 579
• Parties: STATE of North Carolina v. Thomas Allen CHEEKS
• Court: North Carolina Court of Appeals

267 N.C.App. 579

833 S.E.2d 660

STATE of North Carolina

v.Thomas Allen CHEEKS

No. COA18-884

Court of Appeals of North Carolina.

Filed: October 1, 2019

Attorney General Joshua H. Stein, by Special Deputy Attorney General Derrick C. Mertz, for the State.

Appellate Defender G. Glenn Gerding, by Assistant Appellate Defender Daniel Shatz, for defendant-appellant.

STROUD, Judge.

Defendant appeals from his conviction following a bench trial for first degree murder by starvation under North Carolina General Statute § 14-17(a) and negligent child abuse under North Carolina General Statute § 14-318.4(a4), both arising from the mistreatment and death of his four-year-old stepson, Malachi Golden. There was sufficient competent evidence to support the trial court's conclusion that defendant intentionally starved his four-year-old stepson Malachi and that starvation was the proximate cause of his death. As to his conviction for negligent child abuse, there was no fatal variance between the evidence presented at trial and the indictment. After careful review of Defendant's arguments and all of the evidence, we find no error in the trial court's judgment.

I. Procedural and Factual Background

Defendant Thomas Allen Cheeks was charged with first degree murder, negligent child abuse resulting in serious injury, and intentional child abuse resulting in serious injury, all arising from the death of Malachi Golden. He waived jury trial, and a five-day bench trial was conducted starting on 23 October 2017 before the Superior Court, Gaston County. On 1 November 2017, the trial court entered verdicts finding defendant not guilty of intentional child abuse, guilty of negligent child abuse, and guilty of first degree murder by starving but not guilty of murder "with premeditation and deliberation where a deadly weapon is used," felony murder, or murder by torture.¹ Defendant was sentenced to life imprisonment without parole. Defendant gave notice of appeal in open court.

The evidence showed that Malachi Golden was born on 15 November 2010. At the time of his death, Malachi lived with his mother, Tiffany Cheeks, his stepfather, Defendant, and his two younger half-sisters, both the biological children of Mrs. Cheeks and Defendant. Malachi's biological father was never involved in his life. His mother began living with Defendant in 2012, and they were married on 1 November 2013.

Malachi began having "infantile spasms" when he was about 4 months old, and Mrs. Cheeks took him to see his pediatrician, who referred Malachi to a pediatric neurologist, Dr. Robinett. Dr. Robinett determined he was suffering from seizures and prescribed an anti-epileptic medication, Zonisamide. Upon further testing, physicians determined Malachi had a chromosomal abnormality, a microdeletion in chromosome 22. They recommended additional testing to determine whether the abnormality was inherited and likely insignificant, or a new mutation that may be clinically significant, but Mrs. Cheeks never returned to have additional testing done. Mrs. Cheeks stopped taking Malachi to the pediatric neurologist in June 2013, one month after her first child with Defendant was born. Sometime in 2014, without consulting a physician, Mrs. Cheeks stopped giving Malachi his medication.

Malachi had trouble walking and was referred to the Child Development Services Agency (CDSA), which began therapy services. With therapy, his fine motor skills improved, his walking improved, and he was learning to feed himself. At age 3, on 15 November 2013, he aged out of the CDSA therapy services in the home and began to receive therapy at a local elementary school, but Mrs. Cheeks often failed to take him to his therapy appointments because she "just didn't feel like going" and stopped completely in December 2014, one month after the birth of her second child with Defendant.

The therapists mentioned in the trial court's findings of fact below had come to the home to provide services to Malachi's younger sisters, not Malachi, since Mrs. Cheeks had stopped taking him to therapy appointments. 5 February 2015, was the last day a therapist saw Malachi in the home, although she was there to provide therapy for his sister. The therapist commented about how thin Malachi was becoming. The therapist returned to the home for appointments in April but did not see Malachi. After the April appointments, Mrs. Cheeks cancelled therapy for her daughter.

At about 10:00 p.m. on 11 May 2015, Ms. Cheeks called 911 regarding Malachi. When EMS arrived, they found Malachi lying dead in an undecorated room. Malachi was extraordinarily emaciated. Although he was nearly five years old, he was wearing clothing sized for 24 months and 3T, and the clothes were hanging off of him. His bones protruded, his stomach and face were taunt, and his head disproportionately large for his body. The doctor that performed the autopsy estimated that Malachi had been lying on his back after death from a few hours to one or two days.

Besides his obvious emaciation, Malachi had other injuries and signs of severe and protracted neglect. He had head injuries and pressure ulcers where his bones had laid against one another; injuries to his groin and genital area, including sores in various stages of healing, some beyond the point of septic infection. Specialist Justin Kirkland, crime scene investigator for the Gaston County Police Department, had investigated crime scenes for almost 10 years. He was one of the first investigators on the scene and took many of the photographs. Upon examining Malachi, he noted that Malachi had

a large sore on his right groin area. When we turned him over there was -- I would call it large sores, but it was severe diaper rash as well on his bottom. He had large sores on his bottom, something I have never seen before on a child in a death investigation.

The medical examiner also testified had never seen anything like Malachi's pressure sores and extreme diaper rash in a child.² Neither of the other children were visibly malnourished, and police found plenty of food in the home, in both the kitchen cabinets and refrigerator.

After Malachi's death, officers from the Gaston County Police Department interviewed both Defendant and Mrs. Cheeks several times regarding Malachi and the events surrounding his death. Defendant made several conflicting statements to police regarding Malachi's death and his condition leading up to his death. Defendant was not working and was the primary caregiver for Malachi for at least two months before his death. On 11 May 2015, he initially told police he had fed Malachi Spaghettios but he had thrown up, and he had checked on him several times during the day he died. In the second interview, on 14 May 2015, he gave a different timeline of events and said he had fed Malachi a "Kid Cuisine," a "grape-apple pouch[ ] squeeze food," and water. His third and final interview was on 30 October 2015 by Detective Brienza. Detective Brienza received the original, unamended autopsy report on 15 October 2015.³ He then met with Defendant and Mrs. Cheeks again because the "inconsistencies were too great at this point based on the autopsy report." He found inconsistencies in the medication Malachi should have been receiving for his seizure disorder (since Mrs. Cheeks and Defendant claimed his doctors had taken him off medication, but the medical records showed his physician had actually increased the dosage), in the percentages of caretaking responsibilities between Defendant and Mrs. Cheeks, the "huge discrepancy" as to the food Defendant had claimed to have given Malachi and what was found on the autopsy, and evidence of head injuries.

At the third interview, Defendant "had a couple different versions of killing Malachi." His first version was that "Malachi drowned because he gave him too much fluid while in the bath tub" and Malachi had been dead for two days before the 911 call. Detective Brienza noted that the autopsy did not indicate Malachi had drowned. Defendant then said he had put his hands around Malachi's neck to keep him quiet. He said Malachi's moaning "frustrated him greatly." His "method of operation" was to

put his hands around Malachi's throat and pick him up by his neck and choke him enough to quiet him. ... Once Malachi would become limp, he would physically throw him in the Pack N Play from a distance, walk to the doorway, turn around to see if he was okay, if he was going to make any sound or movement. Once he saw that movement he then left.

Defendant claimed he did this to Malachi "five times a week for the last two months" and had been "throwing him around, smacking him, whooping him almost on a daily basis[.]" Defendant said he was frustrated over Malachi's moaning again on 11 May 2015, so after using his regular "method of operation" to quiet him, he also hit him several times on the head with a hard object. He said he watched Malachi "take his last few gasps of breath." He claimed "he bathed Malachi after he was dead for a long period of time," washing his hair and body as if he were alive, and then he put clothing and a new diaper on him and placed him in his bed with a blanket over him.

Defendant testified at trial and gave yet another entirely different story of what happened prior to Malachi's death. He testified that after Mrs. Cheeks left for work around noon, he changed Malachi's diaper, applied diaper rash cream, and fed him lunch. He could not recall exactly what Malachi ate, but it was "normal food" such as "Kid Cuisine, Hungy-Man, hot dogs, chicken nuggets, french fries." He also gave him juice and put him back in his playpen. He then went to take care of the other two children. Around 4:30 p.m., Malachi woke up and Defendant heard his normal moaning sounds. His diaper was dry, so he did not need to be changed, and he then fed Malachi some fruit snacks. He testified that Malachi "grabs as much as he can and stuffs them in the mouth" but most of them he would end up missing his...