STATE OF NORTH CAROLINA v. JOSHUA EARL ANDERSON
(Filed 6 October 2009)
Evidence – demonstration – shaken baby syndrome
The trial court did not err in a felonious child abuse
inflicting serious bodily injury and second-degree murder case
by admitting a shaken baby syndrome demonstration because the
demonstration was relevant to defendant’s intent to harm the
child, was not misleading to the jury, and was not unfairly
Criminal Law – prosecutor’s arguments – failure to present
mental health evidence or mental health defense – failure to
present accident defense
The trial court did not err in a felonious child abuse
inflicting serious bodily injury and second-degree murder case
by overruling defendant’s objections to the prosecutor’s
closing arguments. The prosecutor commented on the lack of
evidence supporting the forecast of evidence by defense
counsel in the opening statement and did not comment on
Defendant’s failure to testify.
Sentencing – failure to conduct separate proceeding
aggravating factors – abuse of discretion standard
The trial court did not abuse its discretion in a
felonious child abuse inflicting serious bodily injury and
second-degree murder case by failing to hold a separate
sentencing proceeding for aggravating factors because the
plain language of N.C.G.S. § 15A-1340.16(a1) vested the trial
court with discretion to bifurcate the felony offense
proceeding from the aggravating factor determination.
Appeal by defendant from judgment entered 5 September 2008 by
Judge Catherine C. Eagles in Forsyth County Superior Court. Heard
in the Court of Appeals 2 September 2009.
Attorney General Roy Cooper, by Assistant Attorney General
LaToya B. Powell, for the State.
-2The trial court did not err by admitting a demonstration when
the State established the relevancy of the demonstration with a
Prosecutors are permitted in closing argument
to point out the lack of evidence supporting the forecast of
evidence made by defendant’s counsel in opening statement.
State’s argument that certain issues were not contained in the
trial court’s instructions was not a comment upon defendant’s
decision not to testify.
Under the North Carolina Structured
Sentencing Act, the decision not to hold a separate proceeding for
aggravating factors is vested in the sound discretion of the trial
court and will not be overturned on appeal absent an abuse of
I. Factual and Procedural Background
On 17 February 2005, J.S. was born in Forsyth County, North
Carolina to Nikki Shepard (Shepard) and Joshua Earl Anderson
(defendant), who were both sixteen years old.
Shepard and J.S.
lived with Shepard’s mother until 12 June 2006 when they moved into
the home of defendant’s mother.
Shepard wanted defendant to spend
more time with their son because he had only seen J.S. five or six
times in the first fifteen months of his life.
After the move,
defendant told Shepard she was too soft on J.S. because she did not
spank or discipline him.
Defendant slept in one bedroom, and Shepard and J.S. slept in
another. On 18 June 2006 at approximately 10:00 p.m., Shepard took
J.S. into defendant’s room to sleep because she could not get him
to stop crying.
Shepard did not see J.S. until briefly the next
On the morning of 19 June 2006, defendant told Shepard he
was going to give J.S. a bath, and she went downstairs to wash her
While downstairs, she heard J.S. let out “a little cry,”
and rushed upstairs to peep into the bathroom.
defendant standing over J.S. giving him a bath, and she thought
nothing was wrong.
Minutes later, defendant called Shepard into the bathroom and
asked her “has [J.S.] ever done this before?”
J.S. had his hands
above his head and was shaking as if he was having a seizure, and
Shepard responded, “No.”
Shepard immediately called 911.
Emergency personnel rushed J.S. to the ambulance.
followed behind them, she asked defendant “ain’t you going to
come?” to which he responded, “No.”
Shepard and J.S. to the hospital.
Defendant did not ride with
While in the ambulance, Shepard
noticed J.S.’s body was swollen.
Upon arrival to the emergency room, J.S. was in cardiac
arrest, he was not breathing, and he was comatose.
doctors resuscitated J.S. and then inserted a breathing tube. Once
stabilized, J.S. was transferred to the pediatric intensive care
unit at Brenner Children’s Hospital, under the care of Dr. Thomas
Dr. Nakagawa examined the results of an X-ray and a
Computer Axial Tomography (CAT scan) to identify why J.S. had been
in cardiac arrest.
The CAT scan revealed J.S. had a parietal
hematoma, or a collection of blood underneath his skin, blood over
the surface of his brain, and a skull fracture.
The X-ray revealed
J.S. had a fracture on his left arm near the wrist.
J.S. also had
-4a bruise on his forehead and retinal hemorrhages in both of his
After J.S. was treated in the emergency room, he was then
moved to a room in the pediatric intensive care unit of the
At some point, defendant came to the hospital with his family,
but was neither crying nor upset.
Defendant recounted the events
of the morning for Dr. Nakagawa.
Defendant said he gave J.S. a
fifteen-minute bath around 8:45 a.m. that morning.
bath, he left J.S. sitting in eight inches of water for about two
While away from the bathroom, defendant heard a cry and
came back to find J.S. standing up in the tub.
He took J.S. out of
the bathtub and began to put baby lotion on him, when he started
having a seizure.
Defendant explained to police he “was giving
J[.S.] a bath, and J[.S.] slipped out of his hands.”
defendant was arrested for felony child abuse inflicting serious
injuries, he told the magistrate “he just kept crying, I just got
J.S. remained in the pediatric intensive care unit of the
hospital for two weeks, until Shepard made the decision to remove
On 30 June 2006, J.S. died at the age of sixteen
On 3 July 2006, Doctor Ellen Reimer performed an autopsy on
J.S. At the time of death, J.S. weighed approximately twenty-three
examination revealed a number of injuries to the head and left arm.
An internal examination revealed multiple bruises underneath J.S.’s
-5scalp, which were the result of three different areas of impact to
One was a fracture to the right parietal bone of the
skull approximately two to two-and-a-half inches in length.
cumulative effect of the impacts caused a significant amount of
swelling to the brain resulting in additional fractures to the
skull. The swelling also caused global hypoxic ischemic injury, or
a lack of oxygen flowing to the brain.
This lack of oxygen caused
contusion to the front left side of the brain, which resulted from
the brain colliding with the skull.
head occurred at the same time.
All of the injuries to J.S.’s
The autopsy concluded that the
proximate cause of death was blunt force trauma to the head.
On 4 June 2007, defendant was charged with felonious child
abuse inflicting serious bodily injury.
This indictment further
alleged the aggravating factor that the crime was especially
heinous, atrocious, and cruel.
On 14 April 2008, defendant was
charged with first-degree murder.
The murder indictment alleged
the aggravating factors that the crime was especially heinous,
atrocious, and cruel, and that the victim was very young.
cases went to trial on 2 September 2008.
On 5 September 2008, the jury found defendant guilty of
felonious child abuse inflicting serious bodily injury and seconddegree murder.
The jury also found all of the aggravating factors
that were alleged in the indictments.
Defendant was sentenced to
an active term of 125 to 159 months for the felonious child abuse
-6charge, and a consecutive term of 237 to 294 months for the seconddegree murder charge.
II. Admission of Shaken Baby Syndrome Demonstration
 In his first argument, defendant contends that the trial
court erred by admitting the shaken baby syndrome demonstration
because the demonstration was irrelevant, misleading, and unfairly
A. Demonstration Was Relevant
admitting the shaken baby syndrome demonstration without proper
foundation, and that the demonstration was irrelevant.
Evidence is relevant if it has “any tendency to make the
existence of any fact that is of consequence to the determination
of the action more probable or less probable than it would be
without the evidence.”
N.C. Gen. Stat. § 8C-1, Rule 401 (2007).
“[E]ven though a trial court’s rulings on relevancy technically are
not discretionary . . . such rulings are give great deference on
appeal.” State v. Wallace, 104 N.C. App. 498, 502, 410 S.E.2d 226,
228 (1991), appeal dismissed and disc. review denied, 331 N.C. 290,
416 S.E.2d 398, cert. denied, 506 U.S. 915, 121 L. Ed. 2d 241
“The burden is on the party who asserts that evidence was
improperly admitted to show both error and that he was prejudiced
by its admission.”
State v. Gappins, 320 N.C. 64, 68, 357 S.E.2d
654, 657 (1987) (citation omitted).
Defendant was charged with felonious child abuse inflicting serious
-7injury and first-degree murder.
Defendant’s intent to physically
harm J.S. was a key element to the jury’s determination of this
See N.C. Gen. Stat. §§ 14-17, 14-318.4(a3) (2007).
severity of J.S.’s injuries and how the injuries were inflicted
demonstration for the jury of how these injuries were inflicted was
relevant to defendant’s intent to harm J.S.
The State established the relevancy of this demonstration with
a proper foundation.
Dr. Reimer, an expert in forensic pathology,
performed the autopsy on J.S.
She testified that there were
multiple bruises to the underside of the scalp located in three
different areas, a fracture to the skull, and a contusion on J.S.’s
She further testified that these injuries required blunt
force trauma to multiple areas of the head, and the spectrum of
injuries was not the result of any accident.
Nakagawa testified as an expert in the areas of intensive care for
children and abusive head trauma. Based on his examination of J.S.
and the medical records, Dr. Nakagawa opined that J.S. suffered
from shaken baby syndrome, and also suffered an impact injury to
Dr. Nakagawa used a toy doll to illustrate for the jury
how shaken baby syndrome would occur, and the amount of force
necessary to cause the kind of injuries suffered by J.S.
laid a proper foundation for the relevancy of this demonstration.
Thus, the trial court did not err by admitting the shaken baby
Because defendant fails to show error, we
do not examine whether he was prejudiced by its admission.
-8B. Demonstration Was Not Misleading or Unfairly Prejudicial
Second, defendant asserts that even assuming arguendo the
demonstration was relevant, it should still have been excluded
because it was both misleading and unfairly prejudicial.
If relevant, a demonstration is admissible when its “probative
prejudice, confusion of the issues, or misleading the jury. . . .”
N.C. Gen. Stat. § 8C-1, Rule 403 (2007).
Under Rule 403, the
decision whether to admit or exclude relevant evidence is within
the sound discretion of the trial court.
State v. Mason, 315 N.C.
724, 731, 340 S.E.2d 430, 435 (1986).
“‘A trial court may be
reversed for abuse of discretion only upon a showing that its
ruling was manifestly unsupported by reason and could not have been
the result of a reasoned decision.’”
State v. Mickey, 347 N.C.
508, 518, 495 S.E.2d 669, 676 (1998) (quoting State v. Riddick, 315
N.C. 749, 756, 340 S.E.2d 55, 59 (1986)), cert. denied, 525 U.S.
853, 142 L. Ed. 2d 106 (1998).
Defendant argues that the demonstration was misleading to the
jury because it was not substantially similar to the manner in
which J.S. had been injured.
This argument fails to recognize the
distinction between an experiment and a demonstration.
An experiment is defined as “a test made to demonstrate a
known truth, to examine the validity of a hypothesis, or to
determine the efficacy of something previously untried.”
-9experiment is carried out under substantially similar circumstances
to those which surrounded the original occurrence.”
Locklear, 349 N.C. 118, 147, 505 S.E.2d 277, 294 (1998) (citations
omitted), cert. denied, 526 U.S. 1075, 143 L. Ed. 2d 559 (1999).
On the other hand, a demonstration is defined as “an illustration
or explanation, as of a theory or product, by exemplification or
Hunt, 80 N.C. App. at 193, 341 S.E.2d at
illustrate shaken baby syndrome.
This demonstration was not an
experiment to prove that J.S. suffered from shaken baby syndrome;
thus, requiring substantially similar circumstances to test the
validity of such a hypothesis.
Rather, Dr. Nakagawa had already
given his expert opinion that, based on his examination of J.S., he
suffered from shaken baby syndrome.
The demonstration illustrated
his testimony regarding the kind of movement and amount of force
necessary to inflict the type of injuries J.S. suffered.
illustration enabled the jury to better understand his testimony
and to realize completely its cogency and force.
See Williams v.
Bethany Fire Dept., 307 N.C. 430, 434, 298 S.E.2d 352, 354 (1983)
(citation omitted); State v. Witherspoon, __ N.C. App __, __, __
S.E.2d __, __ (2009).
The demonstration was not misleading to the
prejudicial to defendant because it had the potential to drive the
jury to an emotional rather than an evidentiary decision.
-10This Court has previously held that a video demonstration of
a doll being subjected to shaken baby syndrome was not unfairly
State v. Carillo, 149 N.C. App. 543, 552-53, 562
S.E.2d 47, 52-53 (2002).
The video demonstration in Carillo was
more graphic than the demonstration in the instant case because it
contained an animated diagram of the infant brain.
Nakagawa’s toy doll demonstration was not unfairly prejudicial.
The State laid a proper foundation to establish the relevancy
demonstration was neither misleading to the jury nor unfairly
prejudicial to defendant.
This argument is without merit.
III. Closing Arguments
 In his second argument, defendant contends the trial court
erred by overruling his objections to the prosecutors’ closing
Constitution grant a criminal defendant the right not to testify.
U.S. Const. amend. V; N.C. Const. art. I § 23; see State v.
Mitchell, 353 N.C. 309, 326, 543 S.E.2d 830, 840 (2001), cert.
denied, 534 U.S. 1000, 151 L. Ed. 2d 389 (2001).
“violates this rule if the language used was manifestly intended to
be, or was of such character that the jury would naturally and
necessarily take it to be a comment on the failure of the accused
State v. Parker, 185 N.C. App. 437, 444, 651 S.E.2d
dismissed and disc. review denied, 362 N.C. 91, 657 S.E.2d 26
“However, in its closing argument, the State may properly
bring to the jury’s attention the failure of a defendant to produce
exculpatory evidence or to contradict evidence presented by the
State v. Parker, 350 N.C. 411, 431, 516 S.E.2d 106, 120
(1999) (citing State v. Mason, 317 N.C. 283, 287, 345 S.E.2d 195,
197 (1986)), cert. denied, 528 U.S. 1084, 145 L. Ed. 2d 681 (2000).
arguments at trial.
We first review whether the prosecutors
violated defendant’s constitutional right not to testify. State v.
Walker, 316 N.C. 33, 38, 340 S.E.2d 80, 82 (1986).
If a violation
occurred, then the burden is upon the State to demonstrate this
violation was harmless beyond a reasonable doubt.
N.C. Gen. Stat.
§ 15A-1443(b) (2007); Mitchell, 353 N.C. at 326, 543 S.E.2d at 841.
defendant’s failure to present mental health evidence or a mental
health defense violated his constitutional right not to testify.
Closing arguments must be viewed in context and in light of
the overall factual circumstances to which they referred. State v.
Flowers, 347 N.C. 1, 36, 489 S.E.2d 391, 412 (1997) (citation
omitted), cert. denied, 522 U.S. 1135, 140 L. Ed. 2d 150 (1998).
In the jury voir dire, defense counsel repeatedly questioned
potential jurors if mental health evidence or a mental health
defense would offend them.
Defense counsel posed the question,
capabilities, or lack thereof, would that prevent you from being
fair and impartial and listening to all of the evidence?”
-12opening statement, defense counsel referred to defendant as “not
only just young physically, but young socially, and emotionally,
and to some extent limited educationally and mentally. A young man
with a borderline IQ of 70.”
At trial, no evidence was presented regarding defendant’s
mental health or limited cognitive abilities, and defendant did not
present any evidence.
In closing argument, the prosecutor stated,
evidence, evidence like you heard in jury selection, you were going
to hear that he was mentally retarded.
See that’s about broken
Broken promises from the defense.”
We do not condone in any respect the State’s use of the term
“broken promises” in its closing argument.
Under the provisions of Rule 9 of the General Rules of
Practice for the Superior and District Courts and N.C. Gen. Stat.
§ 15A-1221(a)(4), defendant can make an opening statement to the
“An opening statement is for the purpose of making a general
forecast of the evidence . . . .”
State v. Mash, 328 N.C. 61, 65,
399 S.E.2d 307, 310 (1991) (citation omitted).
forecasts evidence in the opening statement, the State is permitted
to comment upon the lack of evidence supporting such a forecast in
“Since the evidence did not support the facts
contained in defendant’s opening statement, it was not improper for
the district attorney to highlight the absence of evidence.” State
v. Harris, 338 N.C. 211, 229, 449 S.E.2d 462, 471 (1994).
State’s argument highlighted the total lack of evidence at trial
-13supporting the forecast of evidence by defense counsel in the
opening statement and was not a comment on the failure of the
accused to testify.
We further note that testimony concerning the
defendant’s mental retardation would necessarily require expert
constitutional violation and do not examine whether the statements
were harmless beyond a reasonable doubt.
Defendant also argues the prosecutor’s arguments regarding the
failure to present an accident defense violated defendant’s right
not to testify because defendant was the only person who could
testify that J.S.’s injuries were accidental.
The State presented
two expert witnesses at trial who testified that in their opinion
J.S.’s injuries were not accidental. During closing arguments, the
prosecutor argued to the jury;
[T]here has been a lack of evidence about this
Defendant’s mental health.
And the reason
that I bring this point up, Members of the
Jury, is that Judge Eagles is going to give us
the law at the end of this case. She is not
going to give you any type of mental health
You cannot create a
defense for the Defendant. You will not hear
Judge Eagles say this Defendant was suffering
from anything, you cannot -- you will not hear
Judge Eagles say that -- anything about this
Defendant mitigates this offense.
not hear any defense about accident.
Accident is not an affirmative defense shifting the burden of proof
to a defendant charged with murder.
100, 214 S.E.2d 24, 35 (1975).
State v. Jones, 287 N.C. 84,
Rather, the burden is on the State
to prove the essential elements of murder including intent, thus
disproving a defendant’s assertion of accident.
-14Our Supreme Court has repeatedly stated that “prosecutors ‘may
exculpatory evidence to contradict or refute evidence presented by
State v. Barden, 356 N.C. 316, 355, 572 S.E.2d 108,
133 (2002) (quoting State v. Reid, 334 N.C. 551, 555, 434 S.E.2d
193, 196 (1993)), cert. denied, 538 U.S. 1040, 155 L. Ed. 2d 1074
In State v. Skeels, the Supreme Court held, “[t]he
prosecutor merely commented on the defendant’s failure to present
any evidence in his defense.
were proper . . . .”
S.E.2d 390, 393 (1997).
As such, the prosecutor’s comments
State v. Skeels, 346 N.C. 147, 153, 484
The prosecutor’s comments in this case
were not directed toward defendant’s failure to testify, but rather
were directed to the lack of any mention of mental health or
accident in the trial court’s jury instructions.
argument was a request to the jury to follow the trial court’s
deliberations that were not part of the trial court’s instructions.
Defendant did not assign as error the trial court’s failure to
instruct the jury on accident.
Defendant did assign as error the
trial court’s failure to instruct the jury on mental capacity;
however, defendant does not argue these assignments of error in his
brief, and they are thus deemed abandoned pursuant to Rule 28(b)(6)
of the Rules of Appellate Procedure.
N.C.R. App. P. 28(b)(6).
Defendant’s argument is based largely upon the case of State
v. Baymon, 336 N.C. 748, 446 S.E.2d 1 (1994).
In that case, the
prosecutor directly commented upon defendant’s failure to testify:
-15“We don’t know how many times the child was . . . sexually
[assaulted or abused]. . . . The defendant knows, but he’s not
going to tell you.”
Id. at 757, 446 S.E.2d at 6.
In the instant
case, there were no arguments made by the prosecutors to the jury
directly commenting on defendant’s failure to testify.
not controlling in this case.
somehow rose to the level of a constitutional violation, they were
harmless beyond a reasonable doubt.
Prosecutors argued to the jury that the burden of proof was
upon the State to show defendant’s guilt.
In addition, the trial
court charged the jury upon the presumption of innocence and that
the State had the burden of proving defendant’s guilt beyond a
reasonable doubt, both generally and specifically as to each
The trial court also charged the jury that defendant’s
failure to testify created no presumption against him. The jury is
presumed to have followed the instructions of the trial court.
State v. Thornton, 158 N.C. App. 645, 652, 582 S.E.2d 308, 312
(2003) (citations omitted).
The argument of the prosecutor did not implicate or violate
defendant’s constitutional right not to testify on his own behalf.
This argument is without merit.
IV. Separate Sentencing Proceeding
 In his third argument, defendant contends the trial court
proceeding for aggravating factors.
-16North Carolina’s Structured Sentencing Act states, “The jury
impaneled for the trial of the felony may, in the same trial, also
determine if one or more aggravating factors is present, unless the
court determines that the interests of justice require that a
separate sentencing proceeding be used to make that determination.”
N.C. Gen. Stat. § 15A-1340.16(a1) (2007)1.
The decision to hold a
separate proceeding is vested in the discretion of the trial court.
Our standard of review for such a decision is abuse of discretion.
State v. Tucker, 347 N.C. 235, 240, 490 S.E.2d 559, 561 (1997)
(citations omitted), cert. denied, 523 U.S. 1061, 140 L. Ed. 2d 649
The trial court may only be reversed for an abuse of
discretion upon a showing that its decision was so arbitrary that
it could not have been the result of a reasoned decision.
Morgan, 183 N.C. App. 160, 168, 645 S.E.2d 93, 100 (2007) (citing
State v. Wilson, 313 N.C. 516, 538, 330 S.E.2d 450, 465 (1985)),
appeal dismissed and disc. review denied, 362 N.C. 241, 660 S.E.2d
After the State rested, defendant did not offer any evidence.
The trial judge specifically asked defense counsel whether she had
any additional evidence to offer pertaining to the aggravating
factors, and counsel responded, “I wouldn’t put on any evidence.”
There was thus no additional evidence to be offered at a separate
sentencing proceeding for the aggravating factors. The trial court
Section (d)(6a) of this statute was amended by the 2009
Session Laws; however, this amendment has no effect on the instant
case. 2009 N.C. Sess. Laws 460.
-17submitted the issues of guilty or not guilty, and the aggravating
factors to the jury on the same verdict sheet.
inappropriately emphasizing the aggravating factors, which were not
elements of the offenses.
As to each charge, the trial judge
instructed the jury that they were not to consider the aggravating
reasonable doubt of the substantive offense.
In addition to the
trial judge’s verbal instructions, the individual verdict sheets
for each charge contained written instructions stating that if the
jury found defendant guilty of the particular offense, then the
jury would consider the aggravating factors.
Defendant fails to
show how the trial court abused its discretion in not conducting a
separate sentencing proceeding.
Defendant next argues that the procedures requiring bifurcated
proceedings in capital sentencing and habitual felon cases provide
proper guidance for the submission of aggravating factors pursuant
to N.C. Gen. Stat. § 15A-1340.16(a1).
In both capital sentencing
and habitual felon cases, the applicable statues explicitly require
the trial court to bifurcate the proceedings.
15A-2000(a)(1), 14-7.6 (2007).
N.C. Gen. Stat. §§
The plain language of N.C. Gen.
Stat. § 15A-1340.16(a1) vests the trial court with the discretion
to bifurcate the felony offense proceeding from an aggravating
factor determination in the interests of justice.
§ 15A-1340.16(a1) (2007).
N.C. Gen. Stat.
-18Defendant fails to show how the trial court’s decision not to
require a separate proceeding amounted to an abuse of discretion.
This argument is without merit.
Judges MCGEE and JACKSON concur.