State v. Walden

Decision Date03 August 1982
Docket NumberNo. 162A81,162A81
CourtNorth Carolina Supreme Court
PartiesSTATE of North Carolina v. Aleen Estes WALDEN.

Rufus L. Edmisten, Atty. Gen. by Christopher P. Brewer, Asst. Atty. Gen., Raleigh, for the State-appellant.

Brenton D. Adams, Raleigh, for defendant-appellee.

MITCHELL, Justice.

The principal question presented is whether a mother may be found guilty of assault on a theory of aiding and abetting solely on the basis that she was present when her child was assaulted but failed to take reasonable steps to prevent the assault. We answer this question in the affirmative and reverse the opinion of the Court of Appeals which held to the contrary and ordered a new trial.

On 28 April 1980, defendant was indicted under G.S. 14-32 as follows:

THE JURORS FOR THE STATE UPON THEIR OATH PRESENT that on or about the 9th day of December, 1979, in Wake County Aleen Estes Walden unlawfully and wilfully and feloniously assault Lamont Walden, age one year, with a certain deadly weapon, to wit: a leather belt with a metal buckle, inflicting serious bodiyly [sic] injuries, not resulting in death, upon the said Lamont Walden, to wit: numerous cuts and bruises causing severe blood loss and requiring hospitalization.

Lamont Walden is defendant's son. Defendant was convicted by a jury and sentenced to 5-10 years imprisonment.

The State offered evidence at trial tending to show that Mr. Jasper Billy Davis heard a child crying in the apartment next to his on Saturday evening, 8 December 1979. On Sunday morning, 9 December 1979, at approximately 10:00 a. m., Davis heard a small child screaming and hollering and heard a popping sound coming from the same apartment next door. The sound of the child screaming and hollering and the popping sound lasted for approximately one to one and one-half hours. Davis made a complaint to the Raleigh Police Department requesting that they investigate the noise that he was hearing.

Officer D. A. Weingarten of the Raleigh Police Department testified that he went to Davis' apartment on 9 December 1979. After speaking with Davis, the officer knocked on the door of the apartment next to the Davis apartment. A Miss Devine opened the door and allowed the officer to enter the apartment, where he stayed for a few minutes before leaving to obtain a search warrant. Officer Weingarten returned a short time later with a warrant to search the apartment in question. Upon entering the apartment, the officer saw Devine, the defendant Aleen Estes Walden and George Hoskins. The officer also saw five small children in a corner of the apartment and noticed cuts and bruises on the bodies of the children. One of the children the officer observed at this time was Lamont Walden, a small child in diapers. The officer observed red marks on the chest of Lamont Walden as well as a swollen lip, bruises on his legs and back and other bruises, scarring and cuts.

At trial three of these small children, Roderick Walden, ten years old, Stephen Walden, eight years old, and Derrick Walden, seven years old, testified that "Bishop" George Hoskins hit their brother Lamont Walden with a belt repeatedly over an extended period of time on Sunday, 9 December 1979. Each child testified that the defendant, their mother, was in the room with Hoskins and the baby (Lamont) at the time this beating occurred. Lamont Walden was crying and bleeding as a result of the beating Hoskins gave him. The children testified further that the defendant looked on the entire time the beating took place but did not say anything or do anything to stop the "Bishop" from beating Lamont or to otherwise deter such conduct.

Mrs. Annette McCullers, who is employed by Social Services of Wake County, testified that she observed the five children including Lamont on 9 December 1979. Lamont had bruises on his chest, red marks on his cheek, marks on his back and blood on his back. McCullers talked with Lamont's brothers at this time, and each of them told her that Lamont had been beaten by "Bishop" George Hoskins.

Dr. David L. Ingram, a specialist in pediatric medicine at Wake Memorial Hospital and a child medical examiner, testified that, on 10 December 1979, he examined Lamont at Wake Memorial Hospital and observed bruises, skin breaks and purple marks on Lamont's body. There was blood in Lamont's urine which resulted in the loss of a substantial quantity of blood and required that Lamont be given a blood transfusion. Dr. Ingram testified that in his expert opinion the marks on Lamont were caused by hard blows to the body occurring less than a week prior to his examination.

The defendant offered evidence in the form of testimony of her father, Mr. Meredith Estes, tending to show that James Walden, the father of the Walden children, had whipped the children in the past when living with them. Estes testified that the defendant had never mistreated the children. He further testified that the children had told him that it was their father who beat them on the occasion in question, but that they had later changed their story and stated that George Hoskins beat them and also beat Lamont.

The defendant testified that she was living in an apartment with Miss Devine on 8 December 1979. Three of the defendant's sons had gone to the store with Devine and Hoskins. The defendant's two youngest children were with her. There was a knock on the door and the children's father entered. The father immediately began hitting Lamont Walden with a belt. The defendant tried to stop him but could not do so. The defendant testified that she was struck by the children's father on this occasion and received injuries to her face.

Based on the preceding evidence, the defendant was convicted of assault with a deadly weapon inflicting serious injury in violation of G.S. 14-32(b). During the trial, the State proceeded on the theory that the defendant aided and abetted George Hoskins in the commission of the assault on her child and was, therefore, guilty as a principal to the offense charged.

The defendant assigned as error the action of the trial court in denying her motion to dismiss and allowing the case against her for the felonious assault charge to go to the jury, when all of the evidence tended to show that the defendant did not perform any affirmative act of commission to encourage the perpetrator and did not herself administer the beating to her child. In support of this assignment, the defendant contends, among other things, that the trial court erred in instructing the jury as follows:

It is the duty of a parent to protect their children and to do whatever may be reasonably necessary for their care and their safety. A parent has a duty to protect their children and cannot stand passively by and refuse to do so when it is reasonably within their power to protect their children. A parent is bound to provide such reasonable care as necessary, under the circumstances facing them at that particular time. However, a parent is not required to do the impossible or the unreasonable in caring for their children.

Now a person is not guilty of a crime merely because she is present at the scene. To be guilty she must aid or actively encourage the person committing the crime, or in some way communicate to this person her intention to assist in its commission; or that she is present with the reasonable opportunity and duty to prevent the crime and fails to take reasonable steps to do so.

So I charge that if you find from the evidence beyond a reasonable doubt, that on or about December 9th, 1979, Bishop Hoskins committed assault with a deadly weapon inflicting serious injury on Lamont Walden, that is that Bishop Hoskins intentionally hit Lamont Walden with a belt and that the belt was a deadly weapon, thereby inflicting serious injury upon Lamont Walden; and that the defendant was present at the time the crime was committed and did nothing and that in so doing the defendant knowingly advised, instigated, encouraged or aided Bishop Hoskins to commit that crime; or that she was present with the reasonable opportunity and duty to prevent the crime and failed to take reasonable steps to do so ; it would be your duty to return a verdict of guilty of assault with a deadly weapon, inflicting serious injury. (Emphases added).

The defendant contends that the quoted instructions of the trial court are erroneous in that they permitted the jury to convict her for failing to interfere with or attempt to prevent the commission of a felony. She argues that the law of this State does not allow a conviction in any case for aiding and abetting the commission of a crime absent some affirmative act of commission by the defendant assisting or encouraging the commission of the crime or indicating the defendant's approval and willingness to assist. We do not agree.

It is true, of course, that this Court speaking through Chief Justice Ruffin has stated:

For one who is present and sees that a felony is about being committed and does in no manner interfere, does not thereby participate in the felony committed. Every person may, upon such an occasion, interfere to prevent, if he can, the perpetration of so high a crime; but he is not bound to do so at the peril, otherwise, of partaking of the guilt. It is necessary, in order to have that effect, that he should do or say something showing his consent to the felonious purpose and contributing to its execution, as an aider and abettor.

State v. Hildreth, 31 N.C. (9 Iredell) 440, 444 (1849). In a later case, Justice Ervin speaking for this Court said:

The mere presence of a person at the scene of a crime at the time of its commission does not make him a principal in the second degree; and this is so even though he makes no effort to prevent the crime, or even though he may silently approve of the crime, or even though he may secretly intend to assist the perpetrator in the commission of the crime in case his aid becomes...

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