{
  "id": 11146762,
  "name": "STATE OF NORTH CAROLINA v. SHEILA RENEE BURGESS",
  "name_abbreviation": "State v. Burgess",
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    "judges": [
      "Judges JOHN and TIMMONS-GOODSON concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. SHEILA RENEE BURGESS"
    ],
    "opinions": [
      {
        "text": "HUNTER, Judge.\nDefendant appeals her conviction for felony child abuse and second-degree murder of her infant child, Cheyenne Summer Kelly (\u201cCheyenne\u201d). Briefly, the evidence presented at trial tended to show that defendant, one of eight children, dropped out of high school when she was fifteen years old and pregnant. Her father died that same year. She had four children by four different men before she turned twenty-two and was once married to an older man who physically assaulted her. She abused both alcohol and cocaine. At the time of the incident, defendant lived with her boyfriend, Robbie Patton (\u201cPatton\u201d), in High Point, North Carolina with her then three-week old daughter, Cheyenne. Her other three children were in the custody of the North Carolina Department of Social Services.\nOn 23 November 1997, defendant took Cheyenne to a bar near her home where she was seen drinking excessively. At approximately 12:30 a.m., defendant was seen leaving the bar with the child who seemed fine. Defendant testified that when she returned home, she caught her boyfriend, Patton, kissing the landlord\u2019s daughter and they began arguing. During the argument, Patton grabbed Cheyenne and began shaking her. Defendant grabbed the child and fell on her as she tried to escape from Patton. When Patton left, defendant testified that Cheyenne was fine. She fell asleep on the couch with Cheyenne resting on her stomach, but when she awoke the next morning at 7:00 a.m., Cheyenne was bruised and unresponsive. Initially, defendant repeatedly claimed that Cheyenne fell off her chest and was injured. At trial, however, she claimed that Patton caused the injuries and then asked her to lie to law enforcement officials on his behalf since he was on parole. Patton\u2019s testimony differed from defendant\u2019s. He denies arguing with defendant and shaking Cheyenne. He testified, that defendant smoked pot, took anti-depressants and enjoyed drinking.\nOn the morning of 24 November 1997, Patton drove defendant, defendant\u2019s mother and Cheyenne to High Point Regional Hospital. Cheyenne was immediately transported to Brenner\u2019s Childrens\u2019 Hospital where she died on 27 November 1997 from severe brain trauma. Numerous physicians and hospital personnel testified that Cheyenne\u2019s injuries were not consistent with defendant\u2019s story but were the result of having been repeatedly violently shaken. They were an extreme example of the \u201cshaken baby syndrome\u201d and were not the result of an accidental fall. Many believed the injuries occurred only hours before Cheyenne was seen at the hospital. This theory was corroborated by the pathologist.\nDefendant was indicted on 20 January 1998 for felony child abuse and second-degree murder. Her case was tried 13 April 1998 in Guilford County Superior Court and defendant was found guilty as charged. The trial judge found in aggravation that the victim was very young and in mitigation that the defendant\u2019s age and immaturity at the time of the commission of the offense significantly reduced her culpability. However, the judge then found that the aggravating factors outweighed the mitigating factors and sentenced defendant to 196-245 months for second-degree murder and 31-47 months for felony child abuse, the sentences to run consecutively. Defendant appealed.\nIn her first assignment of error, defendant contends the trial court erred in allowing, over objection, the State to show a videotape of a televised interview of defendant. During the interview, taken at defendant\u2019s request at her home, the news reporter made several comments that cast serious doubt on defendant\u2019s story and, during the commentary, left the distinct impression that she did not believe defendant\u2019s account of the events occurring on 24 November 1997. Eventually the trial court gave a limiting instruction on the videotape and told the jury to disregard the news reporter\u2019s commentary. Defendant argues that the biased videotaped interview merely duplicated earlier testimony, it undermined her credibility, lacked probative value and was highly prejudicial to her defense pursuant to Rule 403. We disagree.\n\u201c \u2018Relevant evidence\u2019 means evidence having 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.\u201d N.C.R. Evid. 401. Rule 403 of the North Carolina Rules of Evidence provides that even relevant evidence may be excluded if its probative value is substantially outweighed by its prejudicial effect. Whether the evidence should be excluded is a decision within the trial court\u2019s discretion. State v. Robertson, 115 N.C. App. 249, 444 S.E.2d 643 (1994). \u201cHence, the trial court\u2019s decision will not be disturbed, unless it \u2018is manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision.\u2019 \u201d State v. McDonald, 130 N.C. App. 263, 267, 502 S.E.2d 409, 413 (1998) (quoting State v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988)).\nIn the case sub judice, defendant, after contacting the news station, proceeded to tell the same story she had repeatedly told health care professionals in the emergency room, pathologists, social workers, law enforcement officers and her mother. Later, after talking to a defense attorney, defendant recanted this story. We find the first description of the story as told to her family, police, doctors and the news reporter to be relevant to show how she lied consistently concerning the cause of the injuries leading to Cheyenne\u2019s death.\nHowever, assuming arguendo that it was error to admit the videotape, we hold it was not prejudicial in light of the other evidence properly admitted at trial. First, the interview was initiated by defendant. Second, we note that the court gave a limiting instruction on the videotape and later ordered the jury to disregard the commentary of the news reporter. Third, defendant, during her own testimony, corroborated most of the information contained in the televised interview. Finally, defendant has admitted that the first story was not true and has failed to show how she was prejudiced by the fact that the news reporter did not believe her false story. In light of the court\u2019s limiting instruction, we cannot find that the trial court\u2019s decision permitting the State to introduce the videotape was an unreasoned one. We discern no error.\nNext, defendant contends the trial court erred in allowing the State to put defendant\u2019s character into evidence during its case-in-chief in violation of N.C.R. Evid. 404(b). Rule 404(b) provides that evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. Defendant asserts that the State was erroneously allowed, over objection, to present specific instances of violent conduct by defendant (use of baseball bat in fight with Patton and breaking all the windows in Patton\u2019s car) to prove defendant\u2019s character for violence in order to show the likelihood that she shook her child to death on 24 November 1997. We disagree.\nOur review of the transcript indicates that defendant opened the door to the State\u2019s subsequent questions concerning defendant\u2019s character for violence. During the State\u2019s case-in-chief, defendant, upon cross-examination, asked a neighbor, Betty Phillips, if defendant was a good mother and kept the baby clean; asked Officer Morris of the High Point Police Department if defendant\u2019s family had a history of abuse; and asked Patton if defendant kept a clean house. In rebuttal, the State presented evidence that, contrary to the picture being painted by the defense, defendant was not a good mother.\n\u201c[T]he law wisely permits evidence not otherwise admissible to be offered to explain or rebut evidence elicited by the defendant himself. Where one party introduces evidence as to a particular fact or transaction, the other party is entitled to introduce evidence in explanation or rebuttal thereof, even though such latter evidence would be incompetent or irrelevant had it been offered initially.\u201d\nState v. Hudson, 331 N.C. 122, 154, 415 S.E.2d 732, 749 (1992), cert. denied, 506 U.S. 1055, 122 L. Ed. 2d 136, reh\u2019g denied, 507 U.S. 967, 122 L. Ed. 2d 776 (1993) (quoting State v. Albert, 303 N.C. 173, 177, 277 S.E.2d 439, 441 (1981)). \u201cDefendant cannot invalidate a trial by . . . eliciting evidence on cross-examination which he might have rightfully excluded if the same evidence had been offered by the State.\u201d State v. Greene, 324 N.C. 1, 12, 376 S.E.2d 430, 438 (1989), sentence vacated on other grounds, 494 U.S. 1022, 108 L. Ed. 2d 603 (1990) (quoting State v. Chatman, 308 N.C. 169, 177, 301 S.E.2d 71, 76 (1983)); see State v. Syriani, 333 N.C. 350, 378, 428 S.E.2d 118,133, cert. denied, 510 U.S. 948, 126 L. Ed. 2d 341 (1993), reh\u2019g denied, 510 U.S. 1066, 126 L. Ed. 2d 707 (1994). This assignment of error is overruled.\nIn her final assignment of error, defendant contends the trial court erred in finding as an aggravating factor on the felony child abuse conviction that the victim was of a very young age since the victim\u2019s age had already been used as an element of the crime. Defendant relies on N.C. Gen. Stat. \u00a7 15A-1340.16(d) to assert that \u201c[e]vidence necessary to prove an element of the offense shall not be used to prove any factor in aggravation . . . .\u201d Here, defendant contends, since the age of the victim was an element of felonious child abuse, the trial judge was precluded from considering the victim\u2019s age as an aggravating factor, see N.C. Gen. Stat. \u00a7 15A-1340.16(d)(ll) (1997). The North Carolina Supreme Court held otherwise in State v. Ahearn, 307 N.C. 584, 300 S.E.2d 689 (1983).\nFor a conviction of felony child abuse (as of 1 January 1995), the State must prove that defendant is a parent or caregiver to a child less than sixteen years old and that defendant intentionally inflicted serious physical injury upon the child. N.C. Gen. Stat. \u00a7 14-318.4(a) (1993); State v. Qualls, 130 N.C. App. 1, 502 S.E.2d 31 (1998), aff'd, 350 N.C. 56, 510 S.E.2d 376 (1999). \u201cThe age of the victim, while an element of the offense, spans sixteen years, from birth to adolescence. The abused child may be vulnerable due to its tender age, and vulnerability is clearly the concern addressed by this factor.\u201d Ahearn, 307 N.C. at 603, 300 S.E.2d at 701 (emphasis in original).\nN.C. Gen. Stat. \u00a7 15A-1340.16(d)(ll) allows the trial court to find as an aggravating factor that the victim was \u201cvery young, or very old, or mentally or physically infirm, or handicapped.\u201d Here, the fact that Cheyenne was very young (3 weeks old) was \u201cnot an element necessary to prove felonious child abuse, and was therefore properly considered as an aggravating factor.\u201d Ahearn, 307 N.C. at 603, 300 S.E.2d at 701. This assignment of error is overruled.\nWe have reviewed the remaining assignments of error and find that they have been either abandoned or are without merit. Defendant received a fair trial, free of prejudicial error.\nNo error.\nJudges JOHN and TIMMONS-GOODSON concur.",
        "type": "majority",
        "author": "HUNTER, Judge."
      }
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    "attorneys": [
      "Attorney General Michael F. Easley, by Assistant Attorney General Anita LeVeaux-Quigless, for the State.",
      "William G. Causey, Jr. and Assistant Public Defender Susan Burch, for defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. SHEILA RENEE BURGESS\nNo. COA98-1001\n(Filed 17 August 1999)\n1. Evidence\u2014 videotaped interview \u2014 second-degree murder\u2014 felony child abuse \u2014 no prejudicial error\nThe trial court did not commit prejudicial error in a felony child abuse and second-degree murder case when it allowed the State, over objection, to show a videotape of a televised interview of defendant-mother where the news reporter\u2019s commentary cast doubt on defendant\u2019s account of the events because: (1) the interview was initiated by defendant; (2) the trial court gave a limiting instruction on the videotape and ordered the jury to disregard the news reporter\u2019s commentary; (3) defendant, during her own testimony, corroborated most of the information contained in the television interview; and (4) defendant has admitted that the first story was not true and has failed to show how she was prejudiced by the fact that the news reporter did not believe her false story.\n2. Evidence\u2014 character \u2014 State\u2019s case-in-chief \u2014 felony child abuse \u2014 second-degree murder \u2014 opened the door\nThe trial court did not err in a felony child abuse and second-degree murder case when it allowed the State to put defendant-mother\u2019s character into evidence during its case-in-chief because defendant opened the door to the State\u2019s subsequent questions concerning her character for violence by attempting to paint a picture of herself as a good mother during the cross-examination of a neighbor.\n3. Sentencing\u2014 child abuse \u2014 aggravating factor \u2014 \u201cvery young\u201d \u2014 not a necessary element\nThe trial court did not err in a felony child abuse and second-degree murder case when it found as an aggravating factor, on the felony child abuse conviction, that the three-week old infant victim was \u201cvery young\u201d because this finding was not a necessary element to prove felonious child abuse.\nAppeal by defendant from judgments entered 17 April 1998 by Judge Catherine C. Eagles in Guilford County Superior Court. Heard in the Court of Appeals 12 May 1999.\nAttorney General Michael F. Easley, by Assistant Attorney General Anita LeVeaux-Quigless, for the State.\nWilliam G. Causey, Jr. and Assistant Public Defender Susan Burch, for defendant-appellant."
  },
  "file_name": "0632-01",
  "first_page_order": 664,
  "last_page_order": 669
}
