1
No. COA15-389 TWENTY-FIRSTJUDICIAL DISTRICT
NORTH CAROLINA COURT OF APPEALS
********************************************************
STATE OF NORTH CAROLINA)
)
v.)From Forsyth
)
CHALMERS BOHANNON)
********************************************************
DEFENDANT-APPELLANT’S BRIEF
********************************************************
1
SUBJECT INDEX
TABLE OF AUTHORITIES...... ii
ISSUES PRESENTED...... 1
STATEMENT OF THE CASE...... 2
GROUNDS FOR APPELLATE REVIEW...... 3
STATEMENT OF FACTS...... 3
ARGUMENT...... 11
I.The Trial Court Erred by Denying Mr. Bohannon’s Motion to Dismiss because the State Presented Insufficient Evidence of a “Serious Bodily Injury” 11
Preservation...... 11
Standard of Review...... 12
Argument...... 12
II.The Trial Court Erred by Failing to Intervene ex mero motu during Closing Arguments when the State Misrepresented the Requirements for a “Serious Bodily Injury” in a Manner that Lowered its Burden of Proof 20
Standard of Review...... 20
Argument...... 20
CONCLUSION...... 25
CERTIFICATE OF COMPLIANCE WITH RULE 28(j)...26
CERTIFICATE OF SERVICE...... 27
TABLE OF AUTHORITIES
Cases
In re Winship,
397 U.S. 358, 25 L. Ed. 2d 368 (1970)...... 24
State v. Earnhardt,
307 N.C. 62, 296 S.E.2d 649 (1982)...... 18
State v. Gardner,
316 N.C. 605, 342 S.E.2d 872 (1986)...... 21
State v. Hannah,
149 N.C. App. 713, 563, S.E.2d 1 (2002)...... 14
State v. Hatcher,
___ N.C. App. ___, 750 S.E.2d 598 (2013)...... 19
State v. Jolly,
297 N.C. 121, 254 S.E.2d 1 (1979)...... 19
State v. Jones,
355 N.C. 117, 558 S.E.2d 97 (2002)...... 24
State v. Lowe,
154 N.C. App. 607, 572 S.E.2d 850 (2002)...... 14
State v. McMorris,
290 N.C. 286, 225 S.E.2d 553 (1976)...... 21
State v. Millsaps,
169 N.C. App. 340, 610 S.E.2d 437 (2005)...... 22, 23
State v. Nabors,
365 N.C. 306, 718 S.E.2d 623 (2011)...... 11
State v. Perry,
___ N.C. App. ___, 750 S.E.2d 521 (2013)...... 17
State v. Reber,
71 N.C. App. 256, 321 S.E.2d 484 (1984)...... 17
State v. Romero,
164 N.C. App. 169, 595 S.E.2d 208 (2004)...... 19
State v. Sanderson,
336 N.C. 1, 442 S.E.2d 33 (1994)...... 22
State v. Smith,
186 N.C. App. 57, 650 S.E.2d 29 (2007)...... 12
State v. Stephens,
244 N.C. 380, 93 S.E. 2d 431 (1956)...... 18
State v. Walters,
357 N.C. 68, 588 S.E.2d 344, cert. denied,
540 U.S. 971, 157 L.Ed.2d 320 (2003)...... 20
State v. Williams,
150 N.C. App. 497, 563 S.E.2d 616 (2002)...... 14
State v. Williams,
201 N.C. App. 161, 689 S.E.2d 412 (2009)...... 15, 16, 17
State v. Williams,
362 N.C. 628, 669 S.E.2d 290 (2008)...... 12
State v. Wilson,
345 N.C. 119, 478 S.E.2d 507 (1996)...... 15
State v. Wilson,
354 N.C. 493, 556 S.E.2d 272 (2001)...... 22, 25
State v. Zuniga,
320 N.C. 233, 357 S.E.2d 898 (1987)...... 24
Statutes
N.C. Gen. Stat. § 7A-27...... 3
N.C. Gen. Stat. § 7A-97...... 21
N.C. Gen. Stat. § 14-318.4...... 14
N.C. Gen. Stat. § 14-318.4(a), (a3) (2012)...... 14
N.C. Gen. Stat. § 14-318.4(d)...... 14
N.C. Gen. Stat. § 14-318.4(d)(1)...... 12
N.C. Gen. Stat. § 14-32.4...... 14
N.C. Gen. Stat. § 15A-318.4...... 23
N.C. Gen. Stat. § 15A-1444(a)...... 3
Other Authorities
N.C. R. App. Pro. 10(a)(3)...... 11
1
No. COA15-389 TWENTY-FIRSTJUDICIAL DISTRICT
NORTH CAROLINA COURT OF APPEALS
********************************************************
STATE OF NORTH CAROLINA)
)
v.)From Forsyth
)
CHALMERS BOHANNON)
********************************************************
DEFENDANT-APPELLANT’S BRIEF
********************************************************
ISSUES PRESENTED
- Whether the trial court erred by denying Mr. Bohannon’s motion to dismiss because the State presented insufficient evidence of a “serious bodily injury?”
- Whether the trial court erred by failing to intervene ex mero motu during closing arguments when the State misrepresented the requirements for a “serious bodily injury” in a manner that lowered its burden of proof?
STATEMENT OF THE CASE
On February 25, 2013, the State obtained an indictment charging Chalmers Bohannon with three counts of Class E felony child abuse inflicting serious physical injury. (R pp 4-5)[1]On May 29, 2013, the State filed a plea offer under which Mr. Bohannon could “plead as indicted” or face additional indictments for Class C felony child abuse inflicting serious bodily injury and habitual felon status. (R p 6) Mr. Bohannon rejected the plea offer. On September 9, 2013, the State obtained indictments charging Mr. Bohannon with Class C felony child abuse inflicting serious bodily injury and habitual felon status. (R pp 7-10)
On March 24, 2014, the case came on for trial in Forsyth County Superior Court before the Honorable Edwin G. Wilson. (Vol I p 1) On March 27, 2014, the jury found Mr. Bohannon guilty of one count of Class C felony child abuse and two counts of Class E felony child abuse. (R pp 36-37) After the guilty verdict, the State voluntarily dismissed the habitual felon indictment. (R pp 38-40) The trial court sentenced Mr. Bohannon to 127 to 165 months’ imprisonment for the Class C offense. (R pp 43-44) The trial court then sentenced Mr. Bohannon to forty-four to sixty-five months’ imprisonment for each of the Class E offenses, and ordered that the three sentences run consecutively. (R pp 45-48) Mr. Bohannon gave notice of appeal. (R p 49)
GROUNDS FOR APPELLATE REVIEW
Chalmers Bohannon appeals from final judgments of the Superior Court pursuant to N.C. Gen. Stat. §§ 7A-27 and 15A-1444(a).
STATEMENT OF FACTS
Substantive Crime Evidence
On September 8, 2012, Alex[2] arrived at the emergency department of Wake Forest Baptist Hospital with bruises on his face, chest, forehead, and ear. (Vol II pp 89, 94) Alex was three months old. (Vol I pp 184, 193)
The State called Alex’s mother, Brittany Fulp, as a witness. Fulp said that on September 7, 2012, she and Alex lived with Alex’s father, Chalmers Bohannon, in an apartment. (Vol I pp 184) On September 7, 2012, she, Alex, and Mr. Bohannon went to the home of Mr. Bohannon’s eighty-year-old mother. That evening they left Alex with his grandmother and went to get take-out. They brought back some food for Mr. Bohannon’s mother, and then Mr. Bohannon, Brittany Fulp, and Alex went home. It was about 6:00 p.m. or 7:00 p.m. (Vol I pp 195-96)
Brittany Fulp said that, when they arrived back at their apartment, she changed Alex’s diaper, fed him, and put him in his cradle. After Alex fell asleep, she walked to Walgreens to buy some gauze. (Vol I pp 196-97) Fulp claimed she needed to buy gauze because she had smashed her finger in the car door about a month earlier and was still putting gauze on it. (Vol II pp 34-35) She had to walk to Walgreens because she did not have her license. (Vol I p 197) She testified that it was about a twenty minute walk to the store. She said she was unable to buy gauze because she did not have enough money; she bought a Mountain Dew instead. (Vol I p198) Fulp said it felt like she was gone for thirty minutes, but when she got home Mr. Bohannon said it had been an hour. (Vol I p 199)
Fulp testified that, when she arrived home, Mr. Bohannon was sitting on the porch with their dog. (Vol I p 199, Vol II p 21) Fulp said she went to check on Alex and found him propped up on a pillow on the bed and whimpering. This was not where she left him. (Vol I p 199) It seemed like he was trying to cry. Fulp saw that he was starting to get bruises on his face and chest – the bruises were a little red – and his eye was a little swollen. (Vol I p 200) Fulp said she asked Mr. Bohannon what happened, and he said that he did not know. She said he did not tell her why the baby was propped up on the bed. (Vol I pp 200-01) Fulp put Alex in his vibrating baby seat and called Mr. Bohannon’s mother, who told her to see if the bruises got better by the next day, and if they did not to take Alex to the emergency room. (Vol I p 202)
Fulp put Alex to bed that night and did not ask Mr. Bohannon any more about what had happened. (Vol I p 203) Although Alex would normally wake up every four hours during the night, that night he slept through without waking up for the first time. (Vol II pp 19, 60) Fulp said she figured he was just tired. (Vol II p 60) In the morning she peeked at Alex while he was sleeping. It was kind of dark so she could not really see. Then she went to work. She had to be at work at 9:00 a.m. or 10:00 a.m. (Vol II pp 203-04)
That evening Mr. Bohannon’s mother wanted to see the baby, and she drove Fulp home after work. Mr. Bohannon brought Alex down to the car. His mother looked at Alex and then took them all to the hospital. (Vol II pp 204-05) Mr. Bohannon’s mother did not come into the hospital. (Vol II p 207) The doctor met with Fulp and asked whether Alex had been dropped or fallen. The medical record showed that history was taken from both Alex’s father and mother, and neither said anything about knowing how the injuries occurred. (Vol II pp 92-96) Alex was taken back to a bed. Mr. Bohannon stayed with Alex and Fulp for about fifteen minutes, and then left. He told Fulp he was going home. (Vol II pp 205-06)
The police were called regarding suspected child abuse. When the first officer arrived, only medical staff were with Alex. The officer found Brittany Fulp outside in the drive-through dock of the emergency department. (Vol II pp 127-29) The officer testified that, “[o]bviously, we felt like she was making an attempt to leave at that time.” (Vol II p 151) The officer interviewed Fulp, who told him that she left her house to walk to Walgreens at around 9:00 p.m. on September 7, 2012, and was gone for about fifteen minutes before she returned to find Alex with the bruises. (Vol II pp 152-53) Throughout the interview she “was having a hard time keeping up with time.” (Vol II p 153)
The officer next went to the apartment and spoke to Mr. Bohannon. Mr. Bohannon signed a consent form and told the officer what happened when Fulp went to Walgreens. He said that Fulp left around 6:00 p.m. and he was home alone with Alex for about an hour and a half before she returned. He was cooking in the kitchen and had Alex on the couch. He heard a noise and saw that Alex had fallen onto the floor. He did not see Alex fall. (Vol II pp 135-39, 160-63) Mr. Bohannon declined to come to the police department at that point for an interview, but said he would let two other detectives come to his home to interview him. (Vol II p 164)
Two other officers went to Mr. Bohannon’s apartment on September 11, 2012, to see if he would come down to the station for a voluntary interview. He agreed, and he came to the station the following day. The police made a video recording of the interview, which was played for the jury. (Vol II pp 188-90, 198-201, Vol III p 3) Throughout the interview, Mr. Bohannon repeatedly told the officers that (1) Alex was not injured when Brittany Fulp went to Walgreens, (2) he was alone with Alex, and (3) Alex fell off the couch. (Vol II pp 191-95)
Medical Evidence of Injuries
Dr. Laura Golding, an Assistant Professor of Radiology at Wake Forest Baptist Health who specializes in pediatric radiology, was the attending radiologist when Alex was first seen in the emergency department. (Vol III pp 43-45, 48) Dr. Golding reviewed a full-body x-ray scan that was conducted on Alex that day, and she found an irregularity on his right tibia that was typical of a buckle fracture. (Vol III pp 49-50) A CAT scan was also performed that day. Dr. David Klein, the attending emergency physician, testified that no bleeding around the brain was seen on the CAT scan. (Vol II pp 98-99)
Two days later, magnetic resonance imaging (MRI) was conducted on Alex’s brain as part of the standard workup for a child with concerns of non-accidental trauma. (Vol III p 58) The MRI is “very sensitive for detecting blood.” Dr. Golding reviewed Alex’s MRIs and noticed “several smaller areas of subarachnoid hemorrhaging within his brain.” She explained that the term “subarachnoid” refers to “the innermost lawyer of the brain tissue that’s right up against the brain within the sulci or in the little grooves of the brain.” (Vol III p 59) When asked to explain the possible consequences of bleeding in this area, Dr. Golding testified that, “[d]epending on the severity, a number of consequences, including mental – developmental delays in a child.” She also said, “[I]f there’s enough occupying volume and increasing intracranial pressure that could lead to acute illness and death if there was significant volume.” (Vol III p 60) Dr. Golding’s role ended with her review of Alex’s scans, and she was not involved in his clinical care. (Vol IIIpp 68, 79)
Unlike Dr. Golding, Dr. Meggan Goodpasture saw Alex in the hospital and evaluated him. She was “able to go to his hospital room to the bedside where I was able to look at his eyes, ears, nose, throat, his skin, listen to his heart and lungs.” (Vol III p 91) Dr. Goodpasture is a pediatrician who specializes in child abuse and neglect, and she was asked to consult on Alex’s care on September 10, 2012. (Vol III pp 81-84, 89)
Dr. Goodpasture explained that “subarachnoid hemorrhages are bleeding around the brain – not within the brain, but around the brain, between the skull and the brain under the arachnoid layer.” (Vol III p 100) She also described the possible consequence of this type of bleeding. She said that “[s]ome infants at the time of bleeds may have things such as irritability, seizures, and can even have life threatening events because of these.” However, she testified that “[Alex] did not have evidence of that at the time[;] [s]o while children are observed for those things, [Alex] had no signs of that.” (Vol III 103) She said “developmental concerns” can also “present later in life, but are incredibly difficult to predict.” (Vol III p 104) She recommended continued follow-up for Alex to look for these concerns, but testified that “we don’t know if this will impact [Alex] over the long run[,] [a]nd we don’t know, if it does impact him, what that will look like.” (Vol III p 104) One day after Dr. Goodpasture’s examination, Alex was discharged from the hospital with a prescription for Tylenol as needed. He was discharged into foster care. (Vol III pp 114-116)
Dr. Golding, Dr. Goodpasture, and Dr. Klein all testified as expert witnesses for the State. (Vol III pp 46, 89) The State did not call any witness who had been involved in Alex’s clinical care from September 11, 2012, through the time of trial in 2014. Brittany Fulp, who had only limited visitation with Alex (Vol II p 84), gave no testimony about his current medical condition.
Dr. Klein testified that it would be “highly unusual” for Alex’s injuries to be caused by a fall from a couch, unless he fell on something that could get to both sides of his face without impacting the nose. (Vol II p 125) Dr. Goodpasture, who saw a photo of the couch,testified that she could not conceive of a mechanism where Alex could have sustained all the bruising from one fall off the couch. (Vol III p 106)
In addition to the injuries to Alex’s head and chest, doctors ultimately determined that he had two fractures of the tibia bone – one fracture in each leg. On Alex’s initial bone scan on September 8, 2012, Dr. Golding saw a bump on Alex’s right tibia bone that indicated a “buckle fracture or fracture that is caused by a compression in that bone.” (Vol III p 49-50) The left tibia looked normal at that time. (Vol III p 55) In a follow-up scan conducted on September 25, 2012, Dr. Golding observed “continued healing of the right fracture of the tibia, but then also evident was healing of a fracture of the left tibia in a very similar location.” (Vol III p 55) It was “hard to say for sure” whether one break was more recent than the other. (Vol III p 57) Dr. Golding estimated that, at the time of the scan on September 25, 2012, the extent of the healing on the fractures indicated that had happened roughly “within two weeks.” (Vol III pp 63-64)
Closing Argument, Jury Instructions and Verdict
During the State’s closing argument, the prosecutor pointed to the medical testimony regarding “concerns about infants having subarachnoid hematoma [sic] or bleeding in the subarachnoid space.” (Vol III p 168) The prosecutor then argued that, under the legal standard for a serious bodily injury, “what’s required is a substantial risk[;] [t]he State is not actually required to prove that [Alex] actually suffered death or disfigurement or whatever.” (Vol III p 168) Defense counsel did not object. The prosecutor next argued that a bleed in the brain “can lead to swelling, which cuts off oxygen, which could lead to death, which could lead to impairment, which could lead to delays, all kinds of significant problems down the road.” (Vol III p 168)
The jury was instructed that the charge of intentional child abuse inflicting serious bodily injury was for the subarachnoid hemorrhages and the two charges of intentional child abuse inflicting serious injury were for (1) the fractured tibia bone, and (2) the bruising on Alex’s face, ear, and chest. (R pp 24-25) The trial court gave the jury the following definition of a serious bodily injury:
A serious bodily injury is defined as a bodily injury that creates a substantial risk of death or that causes serious permanent disfigurement, a permanent or protracted condition that causes extreme pain, or permanent or protracted loss or impairment of the function of any bodily member or organ or that results in prolonged hospitalization.
(R pp 26, 30) After deliberating for forty minutes, the jury asked the court to repeat the definitions of serious bodily injury and serious physical injury. (R p 33, Vol IV pp 16-17) The trial court re-read each definition twice. (R pp 34-35) Thirty-nine minutes later, the jury returned with a guilty verdict. (Vol IV pp 18-19)
ARGUMENT
- The Trial Court Erred by Denying Mr. Bohannon’s Motion to Dismiss because the State Presented Insufficient Evidence of a “Serious Bodily Injury.”
Preservation:
Chalmers Bohannon moved to dismiss for insufficiency of the evidence at the close of the State’s evidence and renewed his motion at the close of all evidence and after the jury verdict. (Vol III pp 135-40, 142, Vol IV 16, 20) His motions preserved this issue for appellate review. N.C. R. App. Pro. 10(a)(3); State v. Nabors, 365 N.C. 306, 312, 718 S.E.2d 623, 626 (2011).
Standard of Review:
“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). When conducting de novo review, this Court considers the matter anew and freely substitutes its own judgment for that of the lower court. State v. Williams, 362 N.C. 628, 632-633, 669 S.E.2d 290, 294 (2008).
Argument:
When the State first charged Mr. Bohannon with three counts of intentional child abuse, the State described the bleeding around Alex’s brain (called a “subarachnoid hematoma” in the first indictment) as a “serious physical injury.” (R p 5) The State changed its characterization of the bleeding to a “serious bodily injury” in response to Mr. Bohannon’s rejection of a plea offer. (R p 6) At trial, the State failed to present evidence that the bleeding created “a substantial risk of death” or caused “serious permanent disfigurement, a permanent or protracted condition that causes extreme pain, or permanent or protracted loss or impairment of the function of any bodily member or organ,” or resulted in “prolonged hospitalization.”(R pp 26, 30); N.C. Gen. Stat. § 14-318.4(d)(1). The trial court erred by denying Mr. Bohannon’s motion to dismiss this charge. This Court should reverse Mr. Bohannon’s conviction for intentional child abuse inflicting a serious bodily injury and remand for entry of judgment on the lesser-included offense of intentional child abuse inflicting serious physical injury.