State v. Anderson

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA13-1105
NORTH CAROLINA COURT OF APPEALS

Filed: 6 May 2014

STATE OF NORTH CAROLINA

v. Onslow County
No. 11 CRS 55657–61
LARRY WAYNE ANDERSON

Appeal by defendant from judgments entered 12 April 2013 by

Judge Charles H. Henry in Onslow County Superior Court. Heard

in the Court of Appeals 3 February 2013.

Attorney General Roy Cooper, by Assistant Attorney General
Linda Kimbell, for the State.

Parish & Cooke, by James R. Parish, for defendant-
appellant.

HUNTER, JR., Robert N., Judge.

Defendant Larry Wayne Anderson (“Defendant”) appeals from

judgments entered on 12 April 2013. Defendant argues (i) the

trial court erred in denying his motion to dismiss in 11 CRS

55659, (ii) the trial court violated Defendant’s rights under

the confrontation clause of the United States and North Carolina

Constitutions, and (iii) the trial court committed plain error
 -2-
in admitting certain statements by a treating physician in this

child abuse case. After careful review, we find no plain error.

I. Facts & Procedural History

On 11 September 2012 the Onslow County Grand Jury indicted

Defendant on charges of felony child abuse inflicting serious

mental injury (“ISMI”), felony child abuse inflicting serious

bodily injury (“ISBI”), and contributing to the delinquency or

other condition of a minor (“CDM”) against J.H. (“Antonio”)1 and

J.B. (“Corey”). The same day, Defendant was indicted on charges

of accessory after the fact of child abuse and CDM against his

biological daughter, K.A. (“Violet”). Defendant was also

indicted on 11 September 2012 on charges of assault with a

deadly weapon inflicting serious injury, ISBI, CDM, and two

counts of ISMI against another stepchild, S.B. (“Benjamin”). On

13 November 2012, the Onslow County Grand Jury indicted

Defendant on charges of ISMI, ISBI, and CDM against W.B.

(“Dakota”).2 Defendant pled not guilty to all charges. The

charges came on for trial at the 8 April 2013 session of Onslow

Count Superior Court. The trial transcript tended to show the

following facts.

1
Pseudonyms are used to protect the identities of the children
involved in this case.
2
Collectively, we refer to all five children as “the children.”
 -3-
Samual Brown (“Mr. Brown”) is the biological father of

Benjamin, Corey, and Dakota, whom he fathered with his former

wife, Mrs. Janet Anderson (“Mrs. Anderson”). Mr. Brown, an Army

serviceman, was deployed to Afghanistan in February 2009. In

November 2009, while Mr. Brown was still in Afghanistan, Mr.

Brown and Mrs. Anderson separated. Mr. Brown paid spousal

support after he and Mrs. Anderson separated.3 Mr. Brown

unsuccessfully asked Mrs. Anderson for primary custody of his

children after he returned home. Mr. Brown continued placing

phone calls to his children while he was deployed and after he

returned home.

On 9 July 2011, Mr. Brown spoke with Benjamin over the

phone. Mr. Brown said his son was “hysterical, crying.”

Benjamin told Mr. Brown that Defendant “tied me up and duct-

taped my mouth.” Mr. Brown told Benjamin to hand the phone to

his ex-wife Mrs. Anderson, whom he told “I want the kids, and I

want them now. That way, I can take care of them and make sure

they’re happy.” Mr. Brown then called the Onslow County

Department of Social Services (“DSS”) and filed a report of

abuse.

3
Mrs. Anderson later married Defendant on 1 November 2010.
 -4-
Mr. Brown was stationed in Alaska at the time of the phone

call and made arrangements to move to Fort Bragg, where his

children lived, in August 2011. When he moved to Fort Bragg,

Mr. Brown’s children were already in foster care, and he was

able to regain custody about three weeks after moving to North

Carolina. Mr. Brown also attempted to gain custody of Antonio,

but was unsuccessful.

Mr. Brown noticed that his children were “different” after

he regained custody of them. Mr. Brown said Benjamin was

“[s]cared of anybody he didn’t know,” and that he would attach

himself to Mr. Brown whenever Benjamin went to a new place or

met new people. Mr. Brown said Benjamin was afraid of Defendant

and that Benjamin thought Defendant “was going to come get him.”

Mr. Brown said Corey was “scared of any man, period, besides

me.” Benjamin, Corey, and Dakota would “[w]ake up screaming”

because “they were afraid of their nightmares.” Benjamin banged

his head against walls, scratched himself, and jumped out of a

second floor window at Mr. Brown’s home. Mr. Brown said he was

unable to properly care for Benjamin. Benjamin ran away from

home and Mr. Brown called DSS for help. Mr. Brown then agreed

to put Benjamin in foster care because he said he “couldn’t help
 -5-
him the way he needed to be helped.” Mr. Brown remained in

contact with Benjamin, calling him every week.

Mr. Brown moved to Illinois with Corey and Dakota after he

was discharged under the Army’s Family Care Plan. After moving

to Illinois, Mr. Brown visited often with his close friend, Mr.

Larry Aldrich. Mr. Brown said when Corey and Dakota first met

Larry Aldrich, they “panicked” because they couldn’t understand

the difference between Larry Aldrich and Defendant, Larry

Anderson. Mr. Brown said it took about four months for Corey

and Dakota to become comfortable with anyone named Larry. Mr.

Brown also said Dakota, who was four at the time of trial, only

began speaking after moving from North Carolina, and began

toilet training at age four. Mr. Brown said Corey remains

uncomfortable around anyone she does not know and will cling to

anyone familiar who is nearby.

Pediatrician Tolly Williams Garrett (“Dr. Garrett”)

testified next at trial. Dr. Garrett observed interviews and

physical examinations of the children. Dr. Garrett said that

there were “clear indicators that [Benjamin], [Antonio],

[Corey], and [Violet] all had been physically abused.” Dr.

Garrett said the evidence of physical abuse was less clear with

Dakota, but that DSS “felt like he had clearly been neglected,
 -6-
as had the other four.” Dr. Garrett described the harm as

“severe” and repetitive with likely permanent or long-lasting

effects on the five children. Dr. Garrett said “the harm came

from a caregiver” which causes longer term damage than damage

from an unknown person.

Dr. Garrett described DSS’s interview of the children.

Antonio said he “was hit across the chest by [Defendant]” with a

mini-blind stick and was punished by standing in the corner with

his hands behind his back and not being allowed to eat lunch.

Before Antonio disclosed these details, he needed several

reassurances that he could safely speak about these punishments.

Antonio recounted Benjamin jumping from the second-story window.

When asked why Benjamin jumped, Antonio said he thought Benjamin

wanted to commit suicide. Antonio, Benjamin, and Corey said

Defendant repeatedly kicked Benjamin in the genitals while bound

and that Benjamin had his mouth taped shut by Defendant. Corey

told her interviewer that “Daddy not like [Benjamin].”4

Antonio also said Corey had her mouth duct-taped as a

punishment and that Defendant “attempted to attach [Corey] to a

ceiling fan.” Antonio said Corey was “teased or tormented with

4
Several of the children referred to Defendant as “Daddy” or
“Dad.”
 -7-
a laser light.” Dr. Garrett recounted several other details of

possible abuse:

There were reports of the children turning
over a trash can to get food and then
getting in trouble for that. The children
had dead bolts put on their bedroom door.
They were locked in their bedrooms. That
was confirmed by Social Workers and law
enforcement, that the dead bolts were on the
outside of the doors; the children were
locked inside the room at night, which of
course, is unsafe due to fire hazard, that
sort of thing, but also, they couldn’t get
up to go to the bathroom.

There were reports of children urinating in
the vents and things like that because they
couldn’t get out to go to the bathroom, and
they were deprived of food. [Antonio]’s
report clearly said the rule was, “Don’t get
into stuff,” and, “No, we don’t get lunch.”

Dr. Garrett also described evidence of abuse to Dakota.

She said Dakota had “multiple bruises,” some of which resulted

from “an incident with a dog,” where Dakota was left outside and

a dog wrapped its dog chain around Dakota’s neck. Dakota’s

physical examination found a “festering infection in his foot”

and that Dakota was “noticeably developmentally delayed.”

Dr. Garrett discussed interviews with an adult roommate who

lived with the Andersons for a time, Alicia Everhart (“Ms.

Everhart”). Ms. Everhart told her interviewers that the

children were not fed enough, that their bedroom doors were
 -8-
locked, and that “the house reeked of urine because the children

were voiding in the vents.” Ms. Everhart also told her

interviewers that Benjamin was struck with the mini-blind rod,

that the children were infrequently bathed, and that the

children were “not allowed to go outside and play.”

A neighbor, Michelle Edwards (“Ms. Edwards”) told

interviewers about two events that Dr. Garrett described as

“concerning.” The first involved

several of the children being forced to
carry weights off of a weight bar, running
up and down the driveway in summer heat.
She reported that when the children fell or
stopped and sat down they were yanked up and
yelled at to continue running. She reported
this event continued in spite of the fact
that Mr. and Mrs. Anderson were aware that
she was watching.

Ms. Edwards also said she saw a separate event where Defendant

was “carrying and throwing out furniture into a pile.” Ms.

Edwards described Defendant screaming next to one of the nearby

children, and that Defendant proceeded to “chop up and destroy

that furniture.” The event seemed to involve an argument

between Defendant and Mrs. Anderson. From the evidence

collected, Dr. Garrett concluded that Antonio, Benjamin, Corey,

and Dakota all suffered emotional harm from their interactions

with Defendant, specifically saying that DSS “characterized that
 -9-
we felt like the children had suffered at both the hands of Mrs.

Anderson and [Defendant] separately, as well as together.” Dr.

Garrett recommended treatments and that Defendant have no

contact with any of the children.

Mr. Brown took his children to two psychologists on Fort

Bragg’s campus; Dr. Sharon Cooper (“Dr. Cooper”) and Ms. Linda

Giles, who both testified at trial. Dr. Cooper, a developmental

and forensic pediatrician, diagnosed Benjamin as physically

abused, neglected, and psychologically maltreated. Dr. Cooper

also opined that Benjamin suffered from post-traumatic stress

disorder and insomnia. Dr. Cooper further opined that Corey and

Dakota suffered from severe psychological problems.

Ms. Giles is a child therapist at Fort Bragg who treated

Corey and Dakota. Ms. Giles said Corey and Dakota “were the

worst children I had seen at Fort Bragg at that point, with the

symptoms they had, both psychologically and physically.” Ms.

Giles said the children were malnourished, had distended

stomachs, thin hair, thin bone structure, that they had worms,

that their digestive systems were “not working properly,” and

that their “eating and defecating was -- was a problem.”

Psychologist Laurie Hawkins (“Ms. Hawkins”) testified next

at trial. Ms. Hawkins also worked with Benjamin and diagnosed
 -10-
him with post-traumatic stress disorder and attention deficit

hyperactivity disorder. Ms. Hawkins completed a “trauma

narrative” with Benjamin, which is a therapeutic device designed

to allow a child to tell their story. In this exercise,

Benjamin would say a sentence telling his life story and then

stop to allow Ms. Hawkins to record his statements. Ms. Hawkins

then would read the statements back to Benjamin, as well as to

his foster mother. Ms. Hawkins read aloud Benjamin’s narrative,

which said

Hi. My name is [Benjamin]. I am six years
old. I live with Ms. Fieena
Terree(phonetic), and Taylor. I like my
home because it has fantastic stuff to play
with. Ms. Fieena cooks good. My favorite is
spaghetti and Oodles of Noodles and hot
dogs. I live here because I got treated bad
in my other home with Larry and Janet. I
hate them a lot because they spanked me
every day.

. . . .

When I lived with Larry and Janet, Larry
spanked me. He does to me and [Antonio] and
[Corey] and [Dakota]. He puts all of us in
the same room because we were bad, and
locked us in. We would try to get out. Me
and [Antonio] found a secret way to get out,
out the window. Larry is at work and Janet
is asleep. He tied my arms and legs up. I
rolled to the window and got untied. I went
out the window and broke into Janet’s room
and sneaked in the kitchen and got food. Me
and my brothers and sister ate the food and
we all sneaked out. Larry hit me in my
 -11-
face. I was thinking, “I am super-mad at
Larry,” and I hated him. One time he tied
me up and taped my mouth for a long time
until I got strong. I was thinking I wanted
to punch him in the stomach. Janet knew he
taped my mouth. Janet let him do it. One
time Janet pushed Larry on me. Larry was
very superbad. Janet was just a little bad.
Larry is in jail and the policeman is next
to the gate so he can’t get out. He is in
jail because he spanked me and that’s called
bad. Child abuse. Janet is in jail because
she is bad and hurt us. It was not my
fault. It was the grown-ups’ fault. I have
learned in therapy to tell Ms. Lorri about
my feelings. I am always happy every time I
come.

Nancy Johnson (“Ms. Johnson”) testified next for the State.

Ms. Johnson is a social worker and worked with Antonio in

Jacksonville in 2012. Ms. Johnson started working with Antonio

after he had been removed to foster care and said she was

attempting to help Antonio testify in the case. Ms. Johnson

said Antonio’s symptoms began to increase when the subject of

testifying was discussed, that he began to soil his bed and have

nightmares. Antonio expressed fear of Larry to Ms. Johnson,

saying “[t]hey’ll get me. It doesn’t matter what anybody does.

They’ll get me.”

Gerald and Michelle Edwards, the Andersons’ neighbors

testified at trial and recounted the two incidents discussed at

the earlier interview with DSS. Defendant’s former roommate,
 -12-
Ms. Everhart testified next. Ms. Everhart stated that she saw

the children being hit with the mini-blind rod and being thrown

around. Ms. Everhart said Defendant hit Benjamin “[m]aybe twice

a day, depending on the situation of what was going on” and that

Defendant hit Benjamin nearly every day. Ms. Everhart said

Defendant became enraged when Antonio and Benjamin got into a

trashcan at the home, hitting both children with the mini-blind

rod. Ms. Everhart said she saw Defendant and Mrs. Anderson lock

the children in their bedroom and that they were not allowed to

leave the room to use the bathroom or for any reason.

Ms. Everhart also recounted that Benjamin and Antonio once

“emptied the trash and brought it into [their] bedroom and

dumped it out all over the floor and they were eating out of the

trash can.” Ms. Everhart said the Andersons punished Benjamin

and Antonio for this, making them clean up the trash and hitting

them. Ms. Everhart also said that while she lived with the

Andersons, all five of their children lived in the same room

that had a deadbolt lock. Ms. Everhart moved out of the

Anderson residence because the fighting and violence between

Defendant and Mrs. Anderson continued to escalate.

Tina Morris (“Ms. Morris”), a social worker with Onslow

County DSS, testified. Ms. Morris arrived at the Andersons’
 -13-
home after receiving a request to perform a family assessment

from Antonio’s school. After Ms. Morris arrived, Antonio

returned from school, lifted his shirt, and showed Ms. Morris a

scar on his chest and his arm. When Ms. Morris asked who gave

him the scar, Antonio pointed to Defendant. Defendant was

present at the meeting and said “Who me?” Mrs. Anderson said

“No” and looked at Antonio. Antonio then said a child at school

gave him the scar.

Prior to Antonio getting home, Defendant told Ms. Morris

that Benjamin and Antonio were fighting, and that Benjamin had

hit Antonio with the mini-blind rod. Ms. Morris also said

Corey had a bruise on her cheek, which she said she had due to a

fall at a McDonalds. Ms. Morris performed a follow up interview

at Antonio’s school a week later. Antonio told Ms. Morris about

the trash incident and that Defendant hit him with a mini-blind

rod. Ms. Morris took photographs of Antonio’s injuries.

Jamie Johnson (“Ms. Johnson”) testified next at trial. Ms.

Johnson was a DSS Investigator who was sent to the Andersons’

home on 13 July 2011. Ms. Johnson spoke with the children and

said that Benjamin told her his mouth had been duct-taped and

that his wrists and ankles were tied behind his back in his

bedroom. Antonio said Benjamin was tied up and that “when he’s
 -14-
tied, he gets kicked in the nuts and pecker.” The children also

recounted being locked in their room, being spanked, and being

bound. Ms. Johnson also said the children’s room did not have a

doorknob, and that the room could be secured by its exterior

locking deadbolt. Ms. Johnson said there were exterior locks on

the windows in the children’s room and that the home smelled of

urine. Based on her observations, Ms. Johnson called her

supervisor and asked Defendant to leave the home that evening.

The children were taken to the Child Advocacy Center on 25 July

2011 and were thereafter placed in foster care.

The State next called Matthew Herring (“Mr. Herring”), who

lived with Defendant in 2010. Mr. Herring testified about the

mini-blind rod incident, saying “[Defendant] went in and I heard

a loud pop, and he came back with a curtain rod in his hand.

And then [Benjamin] came out with a -- crying, and had a welt on

his left side on his arm and his chest. Mr. Herring said that

Defendant punished his children “a little bit more excessive[ly]

than what should have been.” Mr. Herring said Defendant would

pin Benjamin and Antonio’s hands behind their back, sit on their

back, and place them face down in pillows to keep them from

screaming.
 -15-
Onslow County Social Worker Scottie Hampton (“Mr. Hampton”)

was the State’s final witness. Mr. Hampton said he was assigned

to work with the children on 12 September 2011. Mr. Hampton

first met Corey and Dakota in foster care on 30 August 2011 and

said they were anxious and looked pale during the visit.

Benjamin was also present and needed encouragement that he would

be safe. Mr. Hampton described Benjamin’s fears and need to

“escape,” such as not being able to close doors and a desire to

exit rooms through windows. Mr. Hampton said Benjamin required

extensive supervision and care, ultimately requiring a

transition into a therapeutic foster home to meet his needs.

Mr. Hampton also said that Violet and Antonio were placed into

traditional foster care homes.

The State rested its case. The State dismissed the charges

of ISBI in 11 CRS 55657 (concerning Corey), 11 CRS 55658

(concerning Antonio), and 11 CRS 55659 (concerning Dakota).

Defendant requested that the trial court dismiss the ISMI charge

and CDM charge in those three cases, which was denied. In 11

CRS 55660 (concerning Violet), the State dismissed the accessory

after the fact to a felony charge. Defendant moved to dismiss

the CDM charge in 11 CRS 55660, which the trial court denied.

In 11 CRS 55661 (concerning Benjamin), the charge of assault
 -16-
with a deadly weapon inflicting serious injury and one of the

two ISMI charges were dismissed. Defendant moved to dismiss the

ISBI charge, the second ISMI charge, and the CDM charge. The

trial court denied Defendant’s motion.

Defendant testified at trial. Defendant said he was a

caregiver to the children and said “I did spank the kids. I

believe in corporal punishment. I was spanked as a child. So I

would use a belt, a hand, a flip flop. I even spanked the

children with a blind rod on their butts before. So, I mean, I

believe in spankings to correct the child when there’s a

problem.” Defendant said he spanked Benjamin from once a day to

two times a day, depending on his behavior. Defendant also said

he was abused as a child by his biological father and that his

father used his “hand, belt, a switch, anything he could find.”

Defendant said he was dishonest with social workers who came to

his home because he was afraid “of being told that I was just

like [Defendant’s father]” and that he was afraid people would

say he was abusive.

Defendant said Antonio and Benjamin “had gotten into the

trash one day and I sat there and went to the room and proceeded

to spank [Antonio] with the blind rod.” Defendant said he
 -17-
usually spanked the children on the [b]utts,” but that he may

have accidentally hit the child on the chest.

Defendant discussed his issues with Benjamin, saying

Benjamin “was more difficult. When I first met him and

everything, I knew he had issues. Me and Janet had arg --

talked about that and things of that nature.” Defendant said he

had to spank Benjamin more than the others. Defendant said

Benjamin had a problem of hitting his brothers and sisters,

necessitating punishment. Defendant testified that he had

“popped [Benjamin] in the mouth” and that he hit Antonio in the

mouth on accident.

Defendant said he never sat on the children except times

where he was “playing around.” Defendant also said “there was

plenty of food in the house.” Defendant said he and Mrs.

Anderson “had to put locks on the door” because the “kids were

getting into things” and to keep the children safe. Defendant

locked the children in their room every night until he had to go

to work. Defendant also said that the children wet the bed and

that the couple tried to use plastic liners to protect the

mattresses, but that the children would play with the plastic

bed lining. Defendant attributed the home’s urine or fecal

smell to the family dog. Defendant also said he did not kick
 -18-
any of the children in the genitals on purpose. Defendant said

he did not physically abuse the children, but that he felt “kind

of bad” about the mini-blind rod incident. Defendant denied

making the children run up and down the driveway carrying

weights.

After testifying, Defendant renewed his motions to dismiss,

which were denied. The jury found Defendant guilty of all the

remaining charges not previously dismissed, except a finding

that Defendant was guilty of the lesser-included charge of

misdemeanor child abuse rather than felony child abuse in 11 CRS

55659. The trial court entered a judgment sentencing Defendant

to an active sentence of 100 to 147 months in prison. Defendant

gave notice of appeal in open court on 12 April 2013.

II. Jurisdiction & Standard of Review

Defendant appeals as of right from a decision of the trial

court. N.C. Gen. Stat. §§ 7A–27(b), 15A–1444(a) (2013).

Defendant first argues that the trial court erred in

denying his motion to dismiss in 11 CRS 55659. “This Court

reviews the trial court’s denial of a motion to dismiss de

novo.” State v. Smith, 186 N.C. App. 57, 62, 650 S.E.2d 29, 33

(2007). “The test to be applied in ruling on a defendant’s

motion to dismiss is whether the State has produced substantial
 -19-
evidence of each and every element of the offense charged, or a

lesser-included offense, and substantial evidence that the

defendant committed the offense.” State v. Chamberlain, ___

N.C. App. ___, ___, 753 S.E.2d 725, 729 (2014). “If substantial

evidence exists supporting [the] defendant’s guilt, the jury

should be allowed to decide if the defendant is guilty beyond a

reasonable doubt.” State v. Fowler, 353 N.C. 599, 621, 548

S.E.2d 684, 700 (2001), cert. denied, 535 U.S. 939 (2002).

Defendant moved to dismiss a charge of felony child abuse

at trial in 11 CRS 55659 at the close of the State’s evidence

and at the trial’s conclusion. The jury was instructed on the

charge of misdemeanor child abuse and Defendant did not object

to the jury instructions. Defendant did not move to set aside

the verdict finding him guilty of misdemeanor child abuse.

The State argues that because Defendant did not move to set

aside the verdict or object to the misdemeanor child abuse jury

instruction, the present case is not properly before this Court.

We disagree and hold that Defendant preserved the issue via his

motion to dismiss at trial. See State v. Powell, 299 N.C. 95,

98, 261 S.E.2d 114, 117 (1980) (“Upon defendant’s motion for

dismissal, the question for the Court is whether there is

substantial evidence (1) of each essential element of the
 -20-
offense charged, or of a lesser offense included therein, and

(2) of defendant’s being the perpetrator of such offense. If so,

the motion is properly denied.”(emphasis added)).

Under de novo review, we examine the case with new eyes.

“[D]e novo means fresh or anew; for a second time, and an appeal

de novo is an appeal in which the appellate court uses the trial

court’s record but reviews the evidence and law without

deference to the trial court’s rulings.” Parker v. Glosson, 182

N.C. App. 229, 231, 641 S.E.2d 735, 737 (2007) (quotation marks

and citations omitted). “Under a de novo review, the court

considers the matter anew and freely substitutes its own

judgment for that of the lower tribunal.” Craig v. New Hanover

Cnty. Bd. of Educ., 363 N.C. 334, 337, 678 S.E.2d 351, 354

(2009) (quotation marks and citation omitted).

Defendant next argues the trial court committed plain error

by violating his constitutional right to cross-examine

witnesses. Defendant did not object to this issue at trial, nor

does he seek review under Rule 2 in his brief. “[A] party’s

failure to properly preserve an issue for appellate review

ordinarily justifies the appellate court’s refusal to consider

the issue on appeal.” Dogwood Dev. & Mgmt. Co. v. White Oak

Transp. Co., 362 N.C. 191, 195–96, 657 S.E.2d 361, 364 (2008).
 -21-
Appellate courts may suspend the requirements of the Rules of

Appellate Procedure when necessary to “prevent manifest

injustice to a party.” N.C. R. App. P. 2. Such suspensions

must be made cautiously, and only in exceptional circumstances.

See Dogwood, 362 N.C. at 196, 657 S.E.2d at 364. Because

Defendant does not invoke Rule 2 in his brief and based on our

review of the record and transcripts, we refrain from invoking

Rule 2, as we do not find that reviewing Defendant’s assignment

of error would prevent manifest injustice. Accordingly,

Defendant’s second assignment of error is without merit.

Defendant’s third and fourth assignments of error concern

admission of testimony into evidence. Both challenged

statements were not objected to at trial. “When an issue is not

preserved in a criminal case, we apply plain error review.”

State v. Streater, 197 N.C. App. 632, 639, 678 S.E.2d 367, 372

(2009). Plain error is explained in State v. Lawrence, 365 N.C

506, 723 S.E.2d 506 (2012):

For error to constitute plain error, a
defendant must demonstrate that a
fundamental error occurred at trial. To
show that an error was fundamental, a
defendant must establish prejudice that,
after examination of the entire record, the
error had a probable impact on the jury’s
finding that the defendant was guilty.
Moreover, because plain error is to be
applied cautiously and only in the
 -22-
exceptional case, the error will often be
one that seriously affects the fairness,
integrity or public reputation of judicial
proceedings.

Id. at 518, 723 S.E.2d at 334 (quotation marks and citations

omitted). Plain error is “normally limited to instructional and

evidentiary error.” Lawrence, 365 N.C. at 516, 723 S.E.2d at

333. As assignments of error three and four are evidentiary,

plain error review is appropriate.

III. Analysis

A. Motion to Dismiss
Defendant was charged with felony child abuse under N.C.

Gen. Stat. § 14-318.4(a) (2013), which provides

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 physical injury upon or to the child
or who intentionally commits an assault upon
the child which results in any serious
physical injury to the child is guilty of a
Class D felony, except as otherwise provided
in subsection (a3) of this section.

“Serious physical injury” is defined by the statute as

“[p]hysical injury that causes great pain and suffering. The

term includes serious mental injury.” N.C. Gen. Stat. § 14-

318.4(d)(2) (2013).

Synthesizing the statute into elements, there must be a (i)

parent or other caregiver (ii) supervising a child under 16 that
 -23-
(iii) intentionally (iv) inflicts (v) serious physical injury or

commits an assault on the child. We are only concerned with

elements three, four, and five. Taken in the light most

favorable to the State, substantial evidence shows those

elements are met.

After leaving Defendant’s custody, Dakota was fearful of

many individuals whom he came into contact with. When Dakota

was almost three, he was not toilet trained and could not speak.

Dr. Garrett testified that Dakota was deprived of food and

exhibited extreme developmental delays. Dr. Garrett said Dakota

had a foot infection when she saw him. Dr. Garrett said Dakota

had bruises around his neck, apparently from a dog chain being

wrapped around it. Dr. Cooper testified that Dakota was

significantly developmentally delayed, including an inability to

use utensils, to pick up food with his hands, or to walk. Ms.

Giles testified that Dakota was malnourished with thin hair and

bone structure, had worms, and had a malfunctioning digestive

system. Ms. Giles said Dakota could not speak, was not toilet

trained, and had diarrhea so severe that it required medical

attention. Ms. Everhart testified that she saw Defendant pick

Dakota up and throw him around. Defendant testified that he

ensured that all of the children, including Dakota, were locked
 -24-
in their room at night. Defendant admitted to hitting his

children with whatever was close by, although he did say that he

did not discipline Dakota often. The foregoing, amongst other

testimony, provides substantial evidence of the later three

elements, making the trial court’s denial of Defendant’s motion

to dismiss proper.

B. Plain Error
Defendant next argues that the trial court committed plain

error by allowing Dr. Garrett’s testimony that the children were

harmed by a caregiver and that the harm came from Defendant and

Mrs. Anderson, separately and together. We disagree.

Dr. Garrett testified that the examinations performed at

the child advocacy center led her and her team to believe that

“all five of the children had been subjected to repeated

physical abuse and neglect.” Dr. Garrett described the abuse as

severe and causing long-lasting damage to the children. Dr.

Garrett said that “the harm came from a caregiver” and that “if

children are abused by a caregiver, that is more damaging to the

child long-term than damage that comes from an unknown person.”

At the close of Dr. Garrett’s testimony, she stated that “[w]e

characterized that we felt like the children had suffered at

both the hands of Mrs. Anderson and [Defendant] separately, as
 -25-
well as together.” Defendant did not object to any of these

statements at trial.

In State v. Stancil, 355 N.C. 266, 559 S.E.2d 788 (2002),

the Supreme Court held per curiam that it was not plain error to

admit an expert opinion that a victim had in fact been sexually

abused absent a proper foundation where there was “overwhelming”

evidence of the defendant’s guilt, including symptoms of sexual

abuse five days after the incident and intense and immediate

emotional trauma after the incident. State v. Stancil, 146 N.C.

App. 234, 240, 552 S.E.2d 212, 215–16 (2001), per curiam

modified and aff’d, 355 N.C. 266, 559 S.E.2d 788. As such,

because the evidence was “overwhelming” in that case, any error

in admitting improper expert opinion did not amount to plain

error. Id.

State v. Brigman, 178 N.C. App. 78, 632 S.E.2d 498 (2006),

also involved plain error review and held that a physician’s

statement “that these children suffered sexual abuse”

perpetrated by the defendant was improper. Id. at 91–92, 632

S.E.2d at 507. However, this Court again found the other

evidence against the defendant in Brigman was overwhelming and

concluded that the second prong of the plain error standard,

that there was not a “reasonable possibility that a different
 -26-
result would have been reached by the jury.” Id. (citation and

quotation marks omitted).

Defendant cites several cases to support his argument that

Dr. Garrett’s testimony was improper expert testimony of

Defendant’s guilt. See State v. Wilkerson, 295 N.C. 559, 247

S.E.2d 905 (1978); Brigman, 178 N.C. App. 78, 632 S.E.2d 498;

State v. Figured, 116 N.C. App. 1, 446 S.E.2d 838 (1994); State

v. Huang, 99 N.C. App. 658, 394 S.E.2d 279, disc. review denied,

327 N.C. 639, 399 S.E.2d 127 (1990). Defendant’s reliance on

these authorities is misplaced.

In Wilkerson, the Supreme Court held that the physician did

not express any opinion of the defendant’s guilt or innocence.

295 N.C. at 570, 247 S.E.2d at 911 (“Nowhere in the record did

either physician express or purport to express an opinion as to

defendant’s guilt or innocence.”). The Supreme Court cautioned

that the physicians in that case should not have been allowed to

testify that the victim’s injury was caused by any particular

activity or class of activities. Id. However, the evidence

disputed in that case was not reviewed under the plain error

standard, nor were the results in Figured or Huang. Id.;

Figured, 116 N.C. App. at 8, 446 S.E.2d at 843 (holding that

expert opinion testimony was inadmissible without engaging in
 -27-
plain error review); Huang, 99 N.C. App. at 666, 394 S.E.2d at

284 (holding that a psychologist’s testimony that “explicitly

implicated” the defendant was erroneously admitted without

engaging in plain error review). As such, while these cases

found that expert testimony was improperly allowed, the cases

did not consider whether admission of that evidence created a

probable effect upon the verdict, as required under plain error

review.

Here, the situation is analogous to Stancil and Brigman.

While it was error for Dr. Garrett to state that harm was

perpetrated by a caregiver and that Defendant had harmed the

children, we find there was “overwhelming evidence” to suggest

that there was not a reasonable probability that a different

result would have been reached by the jury. The State presented

twelve witnesses at trial, amongst whom included pediatricians,

social workers, therapists, the biological father of three of

the children, two neighbors, and two of Defendant’s roommates.

These witnesses provided extensive evidence, interviews,

eyewitness accounts, and documentation of abuse by Defendant,

catalogued at length supra. For example, Defendant’s roommate

Ms. Everhart testified that Defendant locked his children in

their bedroom and told her not to release them. Ms. Everhart
 -28-
said Defendant threw Dakota around, that he hit Benjamin as much

as twice a day, and that he struck Benjamin and Antonio with a

mini-blind rod on the chest. Extensive evidence was presented

concerning the children’s malnourishment, the smell of urine in

the home, and other incidents of abuse. Further, Defendant

admitted to striking his children and locking the five children

in a single bedroom nightly. As such, overwhelming evidence

existed showing that admission of Dr. Garrett’s testimony would

not have a probable impact on the jury’s verdict, and

Defendant’s argument is overruled.

IV. Conclusion

For the reasons stated above, we find

NO PLAIN ERROR.

Chief Judge Martin and Judge ELMORE concur.

Report per Rule 30(e).