State v. Johnson

• Decision Date: 16 December 2014
• Docket Number: No. COA14–481.,COA14–481.
• Citation: 768 S.E.2d 64 (Table)
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Corey JOHNSON.

768 S.E.2d 64 (Table)

STATE of North Carolina

v.Corey JOHNSON.

No. COA14–481.

Court of Appeals of North Carolina.

Dec. 16, 2014.

Roy Cooper, Attorney General, by Natalie Whiteman Bacon, Assistant Attorney General, for the State.

Staples S. Hughes, Appellate Defender, by Anne M. Gomez, Assistant Appellate Defender, for defendant-appellant.

DAVIS, Judge.

Corey Johnson (“Defendant”) appeals from his conviction of intentional child abuse inflicting serious bodily injury. On appeal, he contends that the trial court erred in (1) denying his motion to dismiss; (2) failing to intervene ex mero motuduring the State's closing argument; and (3) allowing a witness for the State to offer speculative testimony concerning Defendant's motives. After careful review, we conclude that Defendant received a fair trial free from prejudicial error.

Factual Background

The State presented evidence at trial tending to establish the following facts: Ben¹ is the son of Defendant and Tyreather Ingram (“Ingram”) and was approximately 15 months old at the time of the events giving rise to this appeal. Defendant and Ingram were not married and did not live together. At the request of Ingram, Ben stayed overnight with Defendant for the first time at Defendant's home in Charlotte, North Carolina from 13 December 2011 to 14 December 2011. He stayed overnight with Defendant for the second time between 18 December 2011 and 19 December 2011.

While on his way to drop Ben off at Ingram's residence on 19 December 2011, Defendant told Ingram over the telephone that Ben had fallen off a pull-out bed during the overnight visit. In response to Ingram's question whether Ben was “okay,” Defendant responded affirmatively.

Defendant arrived with Ben at Ingram's home in Monroe, North Carolina at approximately 3:00 p.m. As Ingram was taking Ben out of his car seat, Ben vomited. Defendant then took Ben upstairs and played with him for several minutes by tossing him up in the air and flipping him upside down. When Ingram came into the room, Defendant set Ben down and Ben proceeded to fall forward face-first onto the floor.

Ingram told Defendant that “something was wrong with [Ben].” Defendant put Ben onto a bed and Ingram observed that “[Ben] was just laying there” and that “[Ben's] eyes were rolling in the back of his head ... and he turned cold.” At this point Defendant “ran out the door[,]” stating that “he had to get an oil change.” Ingram—believing that something was seriously wrong with Ben—attempted to call Defendant several times before finally reaching him. Upon informing Defendant of her concerns as to Ben's well-being, Defendant told Ingram to “put a cold rag on [Ben's] forehead.”

After this conversation with Defendant, Ingram called her friend, Monique Davis (“Davis”), a nurse. After Ingram explained what had happened, Davis told Ingram that Ben needed immediate medical attention. Davis then contacted her sister who was able to pick up Ingram and Ben in her car and drive them to Carolinas Medical Center–Monroe (“CMC–Monroe”).

Ben was admitted to the emergency room at CMC–Monroe at 5:26 p.m. While Ben was receiving medical attention, Defendant arrived at CMC–Monroe. Medical personnel at CMC–Monroe ultimately determined that Ben needed to be airlifted to Carolinas Medical Center–Levine (“CMC–Levine”) for additional emergency treatment.

Ben was admitted to CMC–Levine at 7:08 p.m. Dr. Otwell Timmons (“Dr.Timmons”), a board-certified specialist in pediatric critical care, was one of Ben's treating physicians. Based upon Dr. Timmons' determination that Ben's injuries were non-accidental, law enforcement officers were contacted in accordance with hospital policy. Detective Shannon Huntley (“Detective Huntley”) with the Monroe Police Department's Special Victims Unit responded along with Detective Jenkins and Sergeant Mike Smith. They arrived at CMC–Levine shortly after midnight. Detective Huntley interviewed and took statements from both Defendant and Ingram. Based upon these interviews, Detective Huntley determined that the only people who had access to Ben between 18 December 2011 and 19 December 2011 were Defendant and Ingram.

On 9 January 2012, Defendant was indicted on (1) one count of intentional child abuse inflicting serious bodily injury; and (2) one count of intentional child abuse inflicting serious physical injury. A jury trial was held in Mecklenburg County Superior Court on 3 September 2013.

At trial, Dr. Timmons was tendered as an expert in pediatric critical care by the State. Dr. Timmons testified that Ben had suffered a left subdural hematoma to the front left side of his head. This injury ultimately caused Ben to suffer a stroke. He further indicated that Ben had suffered an abdominal injury resulting from blunt force trauma which caused the separation of the outer membrane of his intestines from the major portion of his intestines. Additionally, Dr. Timmons stated that Ben had suffered bruises to one of his kidneys and his pancreas, along with additional bruising elsewhere on his body, including his forehead.

Dr. Timmons diagnosed the subdural hematoma and abdominal injuries suffered by Ben as being the result of non-accidental trauma. He testified that the type of subdural hematoma Ben suffered could occur either by virtue of an impact or from violent shaking. Dr. Timmons opined that based on his examination of Ben, there was evidence of both impact—evidenced by the bruising on Ben's forehead—as well as violent shaking—evidenced by the results of an MRI performed on Ben's neck tending to show that he had suffered whiplash. He further expressed the opinion that Ben's abdominal injuries were similarly caused by non-accidental trauma.

[A]s far as the cause of injury to his abdomen, that is blunt force. There was nothing that penetrated his abdomen. It was a significant blunt force. It was a blunt force by something that was small enough to invade the space of his abdominal cavity, meaning it could not have been a broad surface like a floor that would have been absorbed by his ribs, by his pelvis, by his abdominal muscles, and would have caused superficial injury. This was a deeper injury. It was blunt force by a smaller object that was able to project into the anatomy of the abdomen.

Q. By object, could that be hands or feet?

A. Could have been.

Dr. Timmons also stated his opinion that Ben's injuries could not have been caused by falling off of a bed.

When asked for his expert opinion on the timing of Ben's abdominal injuries, Dr. Timmons testified that “[t]he abdominal injury caused blood loss of the severity that it had to be within six hours of when [Ben] was seen in the emergency department in Monroe.” When asked about the timing of the head injuries suffered by Ben, Dr. Timmons further opined that “[t]he head issue conceivably could have occurred as early as 5:26 p.m. on December 18, but it's much less likely it would have occurred that long before his presentation to medical care. It's much more likely that it occurred at or after 11:26 a.m. on the 19th.”

The State introduced into evidence a document containing selected text messages sent between Defendant and Ingram during November and December 2011. The report was compiled by Detective Christopher Perez (“Detective Perez”) with the Charlotte–Mecklenburg Police Department's Digital Forensics Unit. At trial, Detective Perez testified that the document was derived from an exhaustive review of 279 pages of text messages sent between Defendant and Ingram. The State highlighted text messages from Defendant in which Defendant stated that “[h]e wanted to be the person who disciplined [Ben] because [Ingram] was just too soft.”

Q. Do you remember anything else that you and [Defendant] talked about over text messages about [Ben] hitting or what he said about disciplining [Ben]?

A. He said he was going to be hard on him.

Q. And what did you think that meant?

A. He was just going to swipe him.

Ingram further testified as follows:

Q. Does [Defendant] talk about disciplining [Ben] in those text messages?

A. Yes.

Q. What does he say?

A. Can I say the word?

Q. Uh-huh.

A. Called him a bad ass.

Q. And what did he say he was going to do?

A. He going [sic] to discipline him.

....

Q. Go to the second—or, sorry—the next page after that. Just read kind of the top couple of texts and see if that refreshes your recollection about your continued conversation over texts about this hitting issue and about what defendant said and what you said.

A. He said, “Okay, Miss Excuses, I'll just leave it at that, then.” And he does say “Nope” again.

It says, “[Defendant], I'm not making excuses. I'm telling you the truth. I said yes, but only a little, and I was telling you why. And I do know you're going to be hard on him, which I wish you would kinda take it easy, but I already know. But I was honest with you. I wasn't making up excuses.”

Q. Was that you talking to [Defendant]?

A. Yes.

Q. And what do you mean by you already know he's going to be hard on him?

A. When I said hard, I mean just whooping.

Q. Okay. What gave you the impression that [D]efendant wanted to be hard on [Ben]?

A. He put “hard” in all caps.

Q. I mean, had you all had discussions about this other than this document?

A. Yes. He was letting me know how the dad [sic] disciplined him and how he wanted to use some of that.

Q. And if you'll look on, there are some continued conversations about being hard on him. You can kind of read them and then just explain, after it refreshes your recollection, about what you all are talking about about disciplining him.

A. He said, “Hard on him really. Wow, his bad ass needs it. Thinks that you're too soft. He needs to learn to hit before he can learn when to hit. But do it your way.”

Q. Did he say anything else about hitting or what he was going to do or needed to do about [Ben] hitting?

A. One said, “At this point he is bad and it will only get worse. He needs to be broken hard. It may seem harsh, but you gotta let me do what I do.”

And I said, “And what's...