State v Keels
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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA11-350 NORTH CAROLINA COURT OF APPEALS Filed: 6 December 2011 STATE OF NORTH CAROLINA v. Robeson County No. 06 CRS 54284-85 CARLOS ANTONIO KEELS Appeal by Defendant from judgment entered 3 June 2010 by Judge Douglas B. Sasser in Robeson County Superior Court. Heard in the Court of Appeals 27 September 2011. Attorney General Roy Cooper, by Special General Steven M. Arbogast, for the State. Deputy Attorney Attorney Sue Genrich Berry, for Defendant-appellant. HUNTER, JR., Robert N., Judge. I. Factual & Procedural Background On 13 November 2006, a Robeson County grand jury indicted Defendant for first degree murder inflicting serious bodily injury. and felony child abuse Defendant was tried before a jury on 1 March 2010 and pleaded not guilty to all charges. State s evidence at trial tended to show the following. Thompson and Defendant were in an intimate The Sarina relationship and -2lived together along with Ms. Thompson s five ranged in age from two to twelve years old. and Defendant cared who Defendant was not the biological father of any of the children. worked two jobs, children, Ms. Thompson for the children every weekend. Defendant implemented different methods to discipline the children. This included ordering them to run laps around a pool table or do push-ups, as well as physical punishment using a comb or subjected belt. to The three-year-old, discipline because she Susan,1 was not was commonly toilet trained. Velma Davis, Susan s aunt, suspected Susan was being abused. In April 2006, Ms. Thompson and Defendant traveled to Tennessee and the children were left with Ms. Davis. Ms. Davis noticed Susan had bruises on her buttocks, back, and legs, as well as a black eye and cigarette burns on her chest. Ms. Davis called Patricia McRae, Susan s grandmother, and told her Susan screamed when taking a bath and had marks on her body. Ms. McRae took Susan to the hospital. On 15 July 2006, Ms. Thompson and Defendant both physically disciplined Susan because she called Defendant her biological father s name and referred to Ms. Thompson by her first name. 1 A pseudonym conceals the minor victim s identity. -3The next day, Ms. Thompson went to work and Defendant was left to care for the children. When Susan woke up, Defendant forced her to stand in one spot and each time she moved she received physical punishment. fifteen times. Defendant hit Susan with a comb ten to Afterward, he found Susan lying on the floor with urine on her pants; he hit her again with a comb, thumped her in the chest with his fingers, and hit her with a belt. Defendant then called Ms. Thompson and asked her what to do with Susan; Ms. Thompson told him not to discipline Susan and said she would take care of it after work. Defendant stated in his confession that when he called Ms. Thompson on what to do about Susan because she peed in her underwear, Ms. Thompson told him to punish Susan. instructed table. Susan to do After calling Ms. Thompson, Defendant push-ups and to run around the pool While running, she fell and hit her head; Defendant hit her again with a belt because she stopped running. He took Susan into the master bedroom and closed the door. He placed Susan in the tub, but she was not washing herself, so he placed her on the shower floor while the water was running and left the house. Defendant returned and noticed Susan was lying on the floor in the master bedroom. He put her back in the shower and held her there. He then took her out and sat her on -4the toilet seat. She told him her head was hurting. He said that s what happens to little girls when they be bad. asked if she would behave, and she said yes. into Ms. Thompson s bed. and told the She then crawled He noticed blood drops on her nose, bottom lip, and a red mark on her forehead. house, He other children not Defendant left the to enter the master bedroom. Defendant picked Ms. Thompson up from work and asked to be taken to his cousin s house; he then informed Ms. Thompson that Susan was in bed with a headache. home, she noticed a vacuum When Ms. Thompson arrived cleaner cord wrapped around the doorknob of the master bedroom. She removed the cord in order to open the door and found Susan, who was not responding. Ms. Thompson then drove Susan to Susan s grandmother s house where they unsuccessfully attempted to resuscitate Susan. called 911, unsuccessful and at emergency resuscitation medical technicians efforts. Susan was They then were also pronounced dead four minutes after her arrival to the hospital. Medical personnel noticed multiple dark spots on Susan s arms and legs, a skin break on her left hip, and a hematoma on her forehead. The autopsy report indicated that Susan suffered blunt-force injuries to the head, body, arms, and legs. from There -5was significant bleeding under the skin, and many bruises overlapped. Her left lung and pancreas were also bruised. She suffered broken in the mesentery of her intestines with blood in her belly area. The a adrenal gland and hemorrhaging cause of death was hypovolemic shock, which resulted from blood loss due to bleeding from her injuries. At the close of the State s evidence, Defendant moved to dismiss all charges for lack of evidence. In the alternative, he moved to dismiss the charge of first degree murder under the theory of felony legitimate theory. motions. murder on the basis that it was not a The trial court denied all of Defendant s Defendant presented no evidence. The trial court instructed the jury on the elements of felonious child abuse inflicting serious physical injury, first degree murder, and felony murder. The definitions for serious bodily injury and serious physical injury were also provided by the court. instructed When on the referring basis of to felony felonious murder, child abuse the court inflicting serious physical injury. Shortly after the jury began deliberations, it asked the court to explain the difference between serious bodily injury and serious physical injury. At that point, the jury returned -6and the court reread the definitions of the terms. returned with a verdict contradictory to The jury the instructions on filling out the verdict form, and court s the trial court rejected the verdict.2 Defendant then made a motion for a mistrial, which was denied. The court reinstructed the jury on the substantive offenses and the correct use of the verdict form and sent convicted murder the jury back of Defendant rule with to deliberate. first felonious degree child The murder abuse jury under as the ultimately the felony underlying offense. During the penalty phase of the trial, Defendant called James Hilkey psychology. as Mr. an expert Hilkey witness testified competent and was not insane. in that the area Defendant of forensic was mentally Defendant was sentenced to life imprisonment without parole. II. Jurisdiction & Standards of Review Defendant is entitled to appeal his conviction as a matter of right, and we have jurisdiction pursuant to N.C. Gen. Stat. §§ 7A-27 (b) and 15A-1444 (2009). Defendant s motion to exclude a felony murder theory of conviction presents a question of law 2 The record does not reflect the contents of the first verdict form. The trial judge stated, The jury has failed to comply with the Court s instructions as to completing the verdict form. -7that this court reviews de novo. See State v. Bagley, 183 N.C. App. 514, 523, 644 S.E.2d 615, 621 (2007). The power of the trial court to accept or reject the jury s verdict form is restricted to the exercise of a limited legal discretion. State v. O Neal, 67 N.C. App. 65, 70, 312 S.E.2d 493, 496 (1984). III. Analysis Defendant argues the trial court committed prejudicial error by denying his motion to exclude felony murder predicated on felonious child abuse as a theory of conviction for first degree murder. We disagree. First-degree murder by reason of felony murder is committed when a victim is killed during the perpetration or attempted perpetration of certain enumerated felonies or a committed or attempted with the use of a deadly weapon. v. Gibbs, 335 N.C. 1, 51, 436 S.E.2d 321, 350 (1993). child abuse occurs when [a] parent or any other person providing care to or supervision of a child less than 16 years of age [] intentionally inflicts any serious bodily injury to the child or [] intentionally commits an assault upon the child which results in any serious bodily injury to the child, or which results in permanent or protracted loss or impairment of any mental or emotional function of the child. felony State Felonious -8N.C. Gen. Stat. § 14-318.4(a3) (2009). Serious bodily injury is defined as [b]odily injury that creates a substantial risk of death or that causes serious permanent disfigurement, coma, a permanent or protracted condition that causes extreme pain, or permanent or protracted loss or impairment of the function of any bodily member hospitalization. Felony or organ, or that results in prolonged N.C. Gen. Stat. § 14-318.4(d)(1) (2009). murder on the basis of felonious child abuse requires that the State prove the killing took place while the accused was perpetrating or attempting to perpetrate felonious child abuse with the use of a deadly weapon. Stat. § 14-17. See N.C. Gen. When a strong or mature person makes an attack by hands alone upon a small child, the jury may infer that the hands were used as deadly weapons. State v. Pierce, 346 N.C. 471, 493, 488 S.E.2d 576, 589 (1997). In Pierce, the victim was two years old at the time of her death. Id. at 479, 488 S.E.2d at 580. She was in the care of the defendant, who punished the victim by striking her with a belt, smacking her, and shaking her. at 581. Id. at 479-80, 488 S.E.2d On one occasion, the defendant punished the victim for saying she had to urinate when she did not, shaking her for one minute and causing her to go limp. Id. at 480, 488 S.E.2d at -9581. When the victim arrived to the hospital, her body was covered in bruises, other injuries. grab marks, pinch marks, scratches, Id. at 479, 488 S.E.2d at 580. and Her cause of death was severe injury to the brain. Id. at 480, 488 S.E.2d at 581. classified The defendant s hands were as dangerous weapons, and our Supreme Court found no error in his conviction for first degree murder under the felony murder felonious child abuse as the underlying offense. rule with See Id. at 493, 488 S.E.2d at 589. As in Pierce, the victim in the present case was a minor child who was under the care of an adult, Defendant. result of Defendant s abuse, the victim received As a numerous bruises and other injuries which eventually led to death. cases involve means of a non-biologically-related discipline, subjected the abuser child to who, physical Both through abuse. Both defendants were convicted of first degree murder under the felony murder rule with the underlying offense of felony child abuse. The present case is indistinguishable from Pierce. Defendant relies on a footnote in State v. Jones, 353 N.C. 159, 538 S.E.2d 917 (2000), to establish that felonious child abuse cannot be the murder conviction. underlying felony for his first degree In Jones, the defendant killed two people -10and injured three people when driving while impaired. 161-62, felony 538 S.E.2d murder at with 921. the The defendant underlying felony deadly weapon inflicting serious injury. at 921. was of convicted assault of with a Id. at 163, 538 S.E.2d Our Supreme Court reversed the conviction, stating that the underlying felony required specific intent. 172, 538 S.E.2d at 925, 927. stated Id. at that the assault of a Id. at 168-69, In footnote three, the Court victim cannot be used as underlying felony for purposes of the felony murder rule. an Id. at 170 n.3, 538 S.E.2d at 926 n.3. However, in State v. Carroll, our Supreme Court stated, Jones precluded the use of assault as the underlying felony for a felony murder conviction only when there is a single assault victim who dies as a result of the injuries incurred during the assault. State v. Carroll, 356 N.C. 526, 535, 573 S.E.2d 899, 906 (2002). In Carroll, the defendant struck the victim several times with a machete, took her to another room, and strangled her. Id. at 531, 573 S.E.2d at 904. The autopsy indicated the victim s cause of death was strangulation. Id. at 532, 573 S.E.2d at 904. The Court held that the victim did not die as a result assault of separate the offense from with the machete; the murder. the Thus, assault Jones was was a not -11applicable in Carroll. Id. at 535, 573 S.E.2d at 906. In our case, similar to Carroll, the Defendant assaulted Susan in separate incidents over the course of one day. On the morning of 16 July 2006, Defendant hit Susan with a comb ten to fifteen times. Defendant left the house and when he returned he hit Susan with a belt and thumped her on the chest with his finger. Later on, Defendant hit Susan again with a comb on her chest, stomach, hips, buttocks, and hand. He told her to run around the pool table, which is when she fell and hit her head. Defendant then hit Susan with a belt and took her into the master bathroom, where he placed her in the tub and then shower. We hold all of these incidents collectively directly responsible for Susan s death. cannot be At least one abusive incident was an occurrence that was not fatal. As in Carroll, there was at least one separate assault which was unrelated to the cause of death, and thus the footnote in Jones does not apply. The trial court properly denied Defendant s motion to exclude a possible conviction for first degree murder under the felony murder theory. Defendant also argues the trial court erred by rejecting the jury s instructions. initial verdict We disagree. form and rendering further -12 A verdict is a substantial right and is not complete until accepted by the court. State v. Hampton, 294 N.C. 242, 247, 239 S.E.2d 835, 839 (1978). The trial judge s authority to accept or reject a verdict is restricted to the exercise of a limited legal discretion. Id. In a criminal case, it is only when a verdict is not responsive to the indictment or the verdict is incomplete, insensible or repugnant that the judge may decline to accept the verdict and direct the jury to retire and bring in a proper verdict. State v. Abraham, 338 N.C. 315, (1994) 359, 451 S.E.2d 131, 155 (citation omitted). Verdicts in criminal cases ought to be clear and free from ambiguities and uncertainties. Davis v. State, 273 N.C. 533, 538, 160 S.E.2d 697, 702 (1968). In State v. Abraham, the jury first returned with a verdict of guilty for two counts of assault with a deadly weapon with intent to kill, first degree felony murder, and second degree murder. Abraham, 338 N.C. at 358-59, 451 S.E.2d at 155. The court accepted the assault verdict, but instructed the jury once again to deliberate with regards to the murder change. Id. at 359, 451 S.E.2d at 155. On review, the Court held the trial court did not err in rejecting the first verdict form. Id. at 360, 451 S.E 2d at 155. -13In the present case, as in Abraham, the trial court found the jury did not follow its instructions, and the trial court did not abuse its limited legal discretion verdict. verdict. Defendant argues that the trial in rejecting court forced the a However, there is no evidence that the court gave guidance or instructed the jury to come to a specific verdict. The instructions which were given to the jury after the initial verdict was rejected were the same instructions which were given the first time. The trial court in no way forced the jury to find Defendant guilty of first degree felony murder. The trial court s rejection of the jury s initial verdict was a proper exercise of its limited legal discretion because the jury failed to follow the verdict form instructions. IV. Conclusion Based on the foregoing, we find No error. Judges MCGEE and ELMORE concur. Report per Rule 30(e).
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