State v. Noffsinger, No. COA99-166.

• Decision Date: 18 April 2000
• Docket Number: No. COA99-166.
• Citation: 137 NC App. 418,528 S.E.2d 605
• Parties: STATE of North Carolina v. Robyn Lynn NOFFSINGER.
• Court: North Carolina Court of Appeals

528 S.E.2d 605

137 NC App. 418

STATE of North Carolina v. Robyn Lynn NOFFSINGER.

No. COA99-166.

Court of Appeals of North Carolina.

April 18, 2000.

Attorney General Michael F. Easley, by Special Deputy Attorney General Mabel Y. Bullock, for the State.

Marjorie S. Canaday, Blowing Rock, for defendant-appellant.

TIMMONS-GOODSON, Judge.

On 12 April 1997, an emergency medical technician and volunteer ambulance driver, Shannon Parks ("Parks"), answered a call to transport a fifteen month-old child, David Cody Rhinehart ("the child"), to the emergency room of Columbia Brunswick Hospital. The mother of the child, Robyn Lynn Noffsinger ("defendant"), and her boyfriend, David Tripp, Jr. ("Tripp"), transferred the child from their vehicle to the ambulance. At the hospital, Parks observed bruises on the child and believed that he was barely breathing. Parks saw defendant and Tripp outside the emergency room, talking and laughing.

David Crocker ("Crocker"), a detective who was present at the hospital on 12 April 1997, heard defendant express fear that she would be arrested if Tripp left her alone. Around 11:00 p.m., defendant told Tripp that they needed to tell Crocker something, and Tripp told Crocker that the bath water was too hot. Crocker noticed that defendant had small hands and normal length fingernails while Tripp had unusually long fingernails.

Keith Smith ("Smith"), a detective with the Brunswick County Sheriff's Department, arrived at the hospital and observed that the child had bruises and a clouded eye. Smith spoke with defendant, who knew Smith was investigating possible child abuse. Defendant told Smith that she had picked up the child about two weeks earlier from the home of Frederick and Laura May Proffitt. Defendant noticed that the child had three bruises on his head and was told by the Proffitts that the child had fallen. Acquaintances informed defendant that there may have been drug use in the Proffitt home and that the child had been mistreated there. Defendant also told Smith that after she picked up the child from the Proffitt home, he did not sleep well, cried often, beat his head against the wall, hit himself with a baby bottle, and had a constant fever. Defendant tried to comfort the child by holding him and giving him Oragel, aspirin, and various drinks.

Defendant indicated to Smith that on 11 April 1997, Tripp gave the child a bath and told defendant that the skin on the child's buttocks was coming off. Defendant applied A & D ointment. In defendant's opinion, the burns were a reaction to blueberry Hi-C that the child had drunk. On 12 April 1997, Tripp again bathed the child. According to defendant, she observed through a crack in the door that the child fell in the tub, bumped his head, and slipped several times after Tripp picked him up. After the bath, the child appeared sleepy and Tripp took him upstairs. Soon thereafter, Tripp observed that the child could not breathe and he attempted CPR.

Dr. Richard Alexander ("Alexander"), who was working in the emergency room on 12 April 1997, observed that the child was not breathing, that he had a head fracture, abnormal pupil response, facial bruising, deformity on an arm and a leg, and a burned area in the diaper region, and that the child was having seizures. Alexander placed the child on oxygen, administered medications to support blood pressure and control heart rate, and inserted a catheter. He then made arrangements to transport the child to Duke Medical Center for surgery to relieve pressure on the brain.

According to Alexander, the head injury and bruises were about one or two days old and the injury to the buttocks was not from diaper rash or an allergic reaction. The bruising to the head would have required substantial force by squeezing. Alexander admitted that it was unlikely that a person without medical training would be able to recognize certain of the child's medical problems or know their causes or likely time of occurrence. Detective Gene Caison ("Caison") accompanied Detective Smith to the Tripp home on 12 April 1997. Defendant had been living in the Tripp home since January of 1997, but the child did not live in the Tripp house until the last Sunday of March 1997. Present in the Tripp home on 12 April 1997 were David Tripp, Sr., his bedridden wife, James Dodson, Walter, and T.J., defendant's two and one-half year-old son. Caison admitted that David Tripp, Jr. was a caretaker of the child on three dates on which Caison alleged injuries occurred.

Dr. Karen St. Clair ("St. Clair"), a pediatrician at Duke Medical Center, treated the child on 13 April 1997 in the intensive care unit at Duke. St. Clair testified that the child was in critical condition, comatose, and had been placed on life support systems. St. Clair believed that the burns in the buttocks and genital area had been caused by immersion in a hot liquid. She described bruises and lesions and testified that x-rays showed spiral fractures and a buckle fracture in the legs and fractures of the left arm and wrist. St. Clair also described injury to the outer part of the child's eye from some type of trauma as well as blood in the fluid of both eyes. While draining fluid from the brain saved the child's life, the head injury caused brain damage such that only the brain stem remained normal. According to St. Clair, the child would be extremely impaired and would have no thinking processes.

St. Clair testified that the burns occurred within a couple of days of her treating the child. She estimated that the head injury occurred several days before she saw the child. The head injury would have required a forceful impact and could not have been self-inflicted, in St. Clair's opinion. The lower left leg fractures occurred anywhere from minutes before the x-rays were taken to seven days before. Fractures of the left forearm occurred between five days and three weeks before the x-rays. Rib fractures occurred five to seven days before the x-rays. The facial bruising may have occurred a matter of days before she saw it while head bruises were less than seven days old. A split lower lip was two or three days old and puncture marks on the right leg and scratch marks on the face were very recent. The puncture marks appeared to have been made by fingernails. St. Clair testified that the child suffered from battered child syndrome.

When St. Clair interviewed defendant and Tripp after midnight at the hospital, she did not feel that defendant comprehended what she was telling her and defendant occasionally appeared to doze. Defendant and Tripp indicated to St. Clair that the child's injuries had been caused by two baths given by Tripp. Also, they indicated that the child had fallen from a chair onto a vacuum cleaner and that Tripp accidentally hit the child in the eye with his elbow when rising from a settee.

On 1 May 1997 and 9 May 1997, Caison interviewed defendant at the sheriff's department and taped the interview. Caison interviewed Tripp separately. In the interviews, defendant stated that she visited the child while he was living in the Proffitt home from January 1997 until Easter Sunday, 1997. She observed that the child was usually sleepy and stopped walking and talking while there. When she took the child with her on Easter Sunday, she noticed that he had bruises and swelling on his forehead and favored one leg. She believed the leg problem was a result of tight shoes. The child whined and cried frequently during his first week home after Easter, but defendant did not take him to the hospital for fear she would be accused of mistreating him. Defendant denied hurting the child herself and was certain that the Proffitts had caused his injuries.

In his interview, Tripp admitted that he gave the child a bath on 11 April 1997 and that the water may have been too hot, resulting in burns to the child. Defendant was downstairs and heard the child cry out. She asked Tripp if everything was alright and he said yes, but the water was a little too hot. Defendant did not look in the bathroom because the child stopped crying. Later in the evening, defendant saw that the child's skin was peeling off and she applied A & D ointment. Tripp gave the child another bath on the following night and the child fell and hurt himself. When defendant entered the bathroom and asked if the child was alright, Tripp indicated that he was fine. About thirty minutes after the bath, the child began throwing up and acting sleepy.

On 9 May 1997, Caison went to the Tripp home again and arrested defendant and Tripp. According to Caison's description, Tripp was age twenty-four, about six feet tall, with longer than normal fingers and finger nails.

At trial, defense counsel called Tripp to the stand where he asserted the Fifth Amendment and refused to answer any questions. Defense counsel entered into evidence judgments entered on 21 July 1998 sentencing Tripp to active imprisonment for three counts of felony child abuse and suspending sentence against Tripp for a fourth count of felony child abuse. Tripp pled guilty to the four counts of felony child abuse pursuant to an Alford plea.

Following a jury verdict of guilty of three counts of felony child abuse, defendant was sentenced to three consecutive terms of a minimum of thirty-one months with the corresponding maximum of forty-seven months. Defendant appeals.

At issue on appeal is whether the trial court erred in: (I) denying defendant's motion to dismiss the indictments; (II) instructing the jury on aiding and abetting; (III) finding the aggravating factor that defendant joined with more than one other person in committing the offense; and (IV) failing to find the mitigating factor that defendant was a passive participant.

By her first assignment of error, defendant argues that the trial court erred in denying her motion to dismiss the indictments because the prosecution failed to present substantial evidence that defendant was the...