{ "id": 9251607, "name": "STATE OF NORTH CAROLINA v. CHRISTOPHER LEON CARTER, SR.", "name_abbreviation": "State v. Carter", "decision_date": "2002-11-05", "docket_number": "No. COA01-1532", "first_page": "756", "last_page": "763", "citations": [ { "type": "official", "cite": "153 N.C. App. 756" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "480 S.E.2d 435", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "436" } ], "opinion_index": 0 }, { "cite": "125 N.C. App. 301", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11867328 ], "year": 1997, "pin_cites": [ { "page": "304" } ], "opinion_index": 0, "case_paths": [ "/nc-app/125/0301-01" ] }, { "cite": "237 S.E.2d 339", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "340" } ], "opinion_index": 0 }, { "cite": "34 N.C. App. 141", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8547479 ], "year": 1977, "pin_cites": [ { "page": "142" } ], "opinion_index": 0, "case_paths": [ "/nc-app/34/0141-01" ] }, { "cite": "566 S.E.2d 87", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "opinion_index": 0 }, { "cite": "355 N.C. 756", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 220011, 220019, 220118, 219895, 220154 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/nc/355/0756-01", "/nc/355/0756-04", "/nc/355/0756-02", "/nc/355/0756-03", "/nc/355/0756-05" ] }, { "cite": "564 S.E.2d 237", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "240" } ], "opinion_index": 0 }, { "cite": "150 N.C. App. 138", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9080202 ], "pin_cites": [ { "page": "142-43" } ], "opinion_index": 0, "case_paths": [ "/nc-app/150/0138-01" ] }, { "cite": "154 S.E.2d 519", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "pin_cites": [ { "page": "521", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "270 N.C. 416", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568523 ], "year": 1967, "pin_cites": [ { "page": "419", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/270/0416-01" ] }, { "cite": "252 S.E.2d 535", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "540", "parenthetical": "emphasis omitted" } ], "opinion_index": 0 }, { "cite": "40 N.C. App. 72", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548892 ], "year": 1979, "pin_cites": [ { "page": "79", "parenthetical": "emphasis omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/40/0072-01" ] }, { "cite": "393 S.E.2d 781", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "787" } ], "opinion_index": 0 }, { "cite": "327 N.C. 162", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2496850 ], "year": 1990, "pin_cites": [ { "page": "171" } ], "opinion_index": 0, "case_paths": [ "/nc/327/0162-01" ] }, { "cite": "429 S.E.2d 416", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "421" } ], "opinion_index": 0 }, { "cite": "110 N.C. App. 155", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525102 ], "year": 1993, "pin_cites": [ { "page": "162" } ], "opinion_index": 0, "case_paths": [ "/nc-app/110/0155-01" ] }, { "cite": "250 S.E.2d 228", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "231", "parenthetical": "\"the admission of evidence without objection waives prior or subsequent objection to the admission of evidence of a similar character\"" } ], "opinion_index": 0 }, { "cite": "296 N.C. 394", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566356 ], "year": 1979, "pin_cites": [ { "page": "399", "parenthetical": "\"the admission of evidence without objection waives prior or subsequent objection to the admission of evidence of a similar character\"" } ], "opinion_index": 0, "case_paths": [ "/nc/296/0394-01" ] }, { "cite": "523 S.E.2d 663", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2000, "pin_cites": [ { "page": "667" }, { "page": "669" }, { "page": "670" } ], "opinion_index": 0 }, { "cite": "351 N.C. 277", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155670 ], "year": 2000, "pin_cites": [ { "page": "284" } ], "opinion_index": 0, "case_paths": [ "/nc/351/0277-01" ] } ], "analysis": { "cardinality": 686, "char_count": 15035, "ocr_confidence": 0.75, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.21592204796495856 }, "sha256": "49693341532988c5904bcb42adfaa3c00dc4bd2cd36f0f8dd38a68230209805c", "simhash": "1:97894068267e0de6", "word_count": 2442 }, "last_updated": "2023-07-14T15:17:05.865609+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WYNN and McGEE concur." ], "parties": [ "STATE OF NORTH CAROLINA v. CHRISTOPHER LEON CARTER, SR." ], "opinions": [ { "text": "GREENE, Judge.\nChristopher Leon Carter, Sr. (Defendant) appeals judgments dated 4 June 2001 entered consistent with a jury verdict finding him guilty of felony child abuse and assault with a deadly weapon inflicting serious injury.\nAfter being charged on 2 October 2000 with (1) felony child abuse for intentionally committing an assault resulting in serious physical injury and (2) assault with a deadly weapon inflicting serious injury on his three-year-old son C.J., Defendant petitioned the trial court for the aid of a child psychologist to assist in his defense. In an order dated 22 May 2001, the trial court authorized Defendant to spend up to $1,000.00 to obtain the services of a child psychologist to assist in the case. The order, however, did \u201cnot authorize the psychologist to examine [C.J.]\u201d Defendant subsequently filed a motion in limine dated 29 May 2001 in which he requested that the State be prohibited from introducing any hearsay declarations made by C.J. during his hospitalization between 9 and 10 August 2000.\nDuring the voir dire hearing on the motion in limine, the nurses and doctors who had talked to C.J. during his hospitalization testified they had examined C.J. and upon asking him what was wrong with him, C.J. had told each of them \u201cmy daddy kicked me.\u201d The trial court found C.J.\u2019s statements, spoken in a medical environment to personnel who were dressed in medical clothing and performing routine medical assessments, were made for the purpose of diagnosing and treating C.J. The trial court concluded the statements were thus properly admissible under the medical treatment exception to the hearsay rule.\nDefendant also requested an examination of C.J. by a psychologist. Defendant argued to the trial court that \u201cunless [C.J. was] voluntarily produced for [Defendant\u2019s] psychological expert to examine [him] . . . [, C.J.\u2019s] declarations . . . should be inadmissible.\u201d The trial court denied Defendant\u2019s motion.\nAt trial, Janet Vercellino (Vercellino), a nurse at the Morehead Memorial Hospital, testified she first met C.J. when his grandmother brought him to the emergency room on the morning of 9 August 2000. Vercellino asked C.J. what was wrong with him, whereupon C.J. replied \u201c[d]addy kicked me.\u201d When Vercellino inquired where C.J. was hurting, he pointed to the left side of his abdomen. After Vercellino took C.J.\u2019s vital signs, C.J. was examined by two more nurses. Both of the nurses testified at trial that, upon inquiry, C.J. had told them \u201cmy daddy kicked me.\u201d Defendant did not object to the nurses\u2019 testimony.\nDr. Richard Medlin (Dr. Medlin) testified he had reviewed C.J.\u2019s CAT scan and determined C.J. to have a transection of the pancreas, meaning it \u201cwas cut in half.\u201d As this was a potentially fatal injury, Dr. Medlin arranged C.J.\u2019s transfer to another hospital where he underwent surgery the next day. According to Dr. Medlin, the type of injury sustained by C.J. was \u201cextremely unusual.\u201d When asked whether a child could injure himself in this manner by falling off a bed, Dr. Medlin explained this \u201cwould be very unusual\u201d because \u201cthis is a high-energy injury\u201d requiring a lot of force. Furthermore, once this type of injury was sustained, Dr. Medlin would have expected symptoms to manifest themselves within minutes as opposed to days.\nDr. Shelley Kreiter (Dr. Kreiter), who testified as an expert in pediatrics with specialties in child abuse and neglect, testified C.J.\u2019s injury was not only traumatic but consistent with having been kicked. Kreiter further stated C.J. \u201cwould not have fallen on a barbell on Monday,\u201d as alleged by Defendant, \u201cand been a well child on Tuesday only to be a severely ill, a sick child needing surgery on Wednesday. There was too long of a well period in there.\u201d Dr. Charles Turner (Dr. Turner), whom the trial court recognized as an expert in the field of pediatric surgery, explained \u201c[t]here[ was] a significant energy to cause a rupture of the pancreas.\u201d This energy would be closely equivalent to the energy involved in a \u201ccar wreck.\u201d Over Defendant\u2019s objection, Dr. Turner testified C.J. had told him \u201c[m]y father kicked me.\u201d\nAt the close of the State\u2019s evidence, Defendant moved to dismiss the charges against him. The trial court denied the motion, and Defendant proceeded to call his witnesses. C.J.\u2019s mother, Kimberly Dillard Carter (Carter), testified for the defense that two days prior to being hospitalized C.J. had fallen off his bed and landed on a barbell. When she had asked C.J. if he was all right, he had told her he was. Carter and Defendant, however, noted that C.J. did not have much of an appetite after this incident.\nAt the close of all the evidence, Defendant renewed his motion to dismiss, which was again denied. The jury subsequently found Defendant guilty of felony child abuse and assault with a deadly weapon inflicting serious injury, and the trial court sentenced Defendant to two consecutive prison terms.\nThe issues are whether the trial court erred in: (I) admitting C.J.\u2019s statements under the medical treatment exception to the hearsay rule without (1) affording Defendant an opportunity to have C.J. examined by a defense psychologist and/or (2) to voir dire C.J. as to his intent when he made the statements in question; (II) denying Defendant\u2019s motion to dismiss; and (III) failing to arrest one of the felony charges under the doctrine of merger.\nI\nDefendant argues the trial court should have (1) permitted a defense psychologist to examine C.J. and/or (2) allowed a voir dire examination of C.J. in order to determine whether he possessed the requisite intent necessary for the admissibility of his statements under the medical treatment exception to the hearsay rule. We disagree.\n\u201cStatements made for purposes of medical diagnosis or treatment and describing . . . past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof\u2019 are admissible in court as an exception to the hearsay rule. N.C.G.S. \u00a7 8C-1, Rule 803(4) (2001). \u201cRule 803(4) requires a two-part inquiry: (1) whether the declarant\u2019s statements were made for purposes of medical diagnosis or treatment; and (2) whether the declar-ant\u2019s statements were reasonably pertinent to diagnosis or treatment.\u201d State v. Hinnant, 351 N.C. 277, 284, 523 S.E.2d 663, 667 (2000).\nIn Hinnant, the only case Defendant cites as support for his argument, our Supreme Court \u201crecognize [d] the difficulty of determining whether a declarant[, especially a young child,] understood the purpose of his or her statements.\u201d Id. at 287, 523 S.E.2d at 669. The Supreme Court held that the declarant\u2019s intent could be determined by consideration of \u201call objective circumstances of record surrounding [the] statements.\u201d Id. at 288, 523 S.E.2d at 670. Thus, neither a psychological examination nor a voir dire examination is necessary under Hinnant for the determination of whether the declarant had the requisite intent to qualify his statements under the medical treatment exception of Rule 803(4).\nWe further note Defendant did not request the trial court to conduct a voir dire examination of C.J. See N.C.R. App. P. 10(b)(1) (in order to preserve a question for appellate review, the appellant must have presented the trial court with a timely request or motion). Moreover, while Defendant excepted to Dr. Turner\u2019s testimony regarding C.J.\u2019s statement to him, Defendant waived this objection by permitting the three nurses to testify without objection to C.J.\u2019s identical statement. See State v. Campbell, 296 N.C. 394, 399, 250 S.E.2d 228, 231 (1979) (\u201cthe admission of evidence without objection waives prior or subsequent objection to the admission of evidence of a similar character\u201d). Accordingly, Defendant\u2019s assignments of error as to this issue are overruled.\nII\nDefendant next contends the trial court erred in denying his motion to dismiss because the evidence presented by the State was insufficient to prove Defendant intentionally kicked C.J.\nIn ruling on a motion to dismiss, the trial court must determine whether there is substantial evidence of each essential element of the offense charged and that the defendant is the perpetrator of the offense. State v. Harding, 110 N.C. App. 155, 162, 429 S.E.2d 416, 421 (1993). \u201cSubstantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.\u201d State v. Franklin, 327 N.C. 162, 171, 393 S.E.2d 781, 787 (1990). \u201cIf the trial court determines that a reasonable inference of the defendant\u2019s guilt may be drawn from the evidence, it must deny the defendant\u2019s motion and send the case to the jury even though the evidence may also support reasonable inferences of the defendant\u2019s innocence.\u201d State v. Smith, 40 N.C. App. 72, 79, 252 S.E.2d 535, 540 (1979) (emphasis omitted).\nOne of the elements of felony child abuse the State must prove in this case, is that the defendant \u201cintentionally commitfted] an assault upon the child.\u201d N.C.G.S. \u00a7 14-318.4(a) (2001). Proof of assault, which naturally is also an element of assault with a deadly weapon inflicting serious injury, requires evidence of \u201c \u2018an intentional attempt, by violence, to do injury to the person of another.\u2019 \u201d State v. Britt, 270 N.C. 416, 419, 154 S.E.2d 519, 521 (1967) (citation omitted) (defining assault).\n\u201cAn injury is inflicted intentionally when the person who caused it intended to apply the force by which it was caused. Intent is a mental attitude seldom provable by direct evidence. It must ordinarily be proved by circumstances from which it may be inferred. An intent to apply force to the body of another may be inferred from [the act itself,] [the nature of the injury,] [the conduct or declarations of the person who applied it, or] [other relevant circumstances].\u201d\nState v. Smith, 150 N.C. App. 138, 142-43, 564 S.E.2d 237, 240 (quoting N.C.P.I.\u2014Crim. 206.35 (1998)), disc. review denied, 355 N.C. 756, 566 S.E.2d 87 (2002).\nWhile the statement \u201cmy daddy kicked me,\u201d standing alone, is insufficient to prove intent, the expert testimony presented in this case indicated C.J. had sustained an \u201cextremely unusual,\u201d severe, and traumatic injury. Dr. Kreiter further testified C.J.\u2019s injury was consistent with having been kicked. As C.J.\u2019s injury was the result of a \u201chigh-energy\u201d impact, equivalent to the force sustainable in a \u201ccar wreck,\u201d it is reasonable to infer the injury was not accidental in nature but was the result of an intentional kick. The trial court therefore properly denied Defendant\u2019s motion to dismiss.\nIll\nFinally, Defendant asserts the trial court erred in failing to arrest one of the felony charges under the doctrine of merger. We disagree.\nThe common law doctrine of merger is a judicial tool to prevent the subsequent prosecution of a defendant for a lesser[-] included offense once he has been acquitted or convicted of the greater. It is primarily a device to prevent the defendant from being placed twice in jeopardy for the same offense.\nState v. Moore, 34 N.C. App. 141, 142, 237 S.E.2d 339, 340 (1977). Where the offenses charged are based on \u201ctwo distinct criminal statutes which require proof of different elements . . . , the punishment of each of these separate offenses by consecutive sentences does not violate the constitutional prohibition against double jeopardy.\u201d State v. Evans, 125 N.C. App. 301, 304, 480 S.E.2d 435, 436 (1997). In this case, each of the two offenses with which Defendant was charged requires proof of elements not included in the definition of the other offense. Thus, Defendant\u2019s argument is without merit.\nNo error.\nJudges WYNN and McGEE concur.\n. As Defendant did not argue that the objective evidence in this case was insufficient to establish C.J.\u2019s intent, we need not address this issue. See N.C.R. App. P. 28(a).\n. As the facts of this case do not raise the issue, we do not address whether upon a trial court\u2019s determination that the objective evidence is insufficient to find the requisite intent, the State is entitled to either a psychological examination or a voir dire examination of the child in order to determine his subjective intent.", "type": "majority", "author": "GREENE, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Kirk Randleman, for the State.", "C. Orville Light for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. CHRISTOPHER LEON CARTER, SR.\nNo. COA01-1532\n(Filed 5 November 2002)\n1. Evidence\u2014 hearsay \u2014 medical treatment exception\nThe trial court did not err in a felony child abuse and assault with a deadly weapon inflicting serious injury case by admitting the minor child victim\u2019s statements under the N.C.G.S. \u00a7 8C-1, Rule 803(4) medical treatment exception to the hearsay rule without affording defendant an opportunity to have the child examined by a defense psychologist and/or to voir dire the child as to his intent when he made the statements in question, because: (1) neither a psychological examination nor a voir dire examination is necessary for the determination of whether the declarant had the requisite intent to qualify his statements under the medical treatment exception; (2) defendant did not request the trial court to conduct a voir dire examination of the child; and (3) while defendant excepted to a doctor\u2019s testimony regarding the child\u2019s statement to him, defendant waived this objection by permitting three nurses to testify without objection to the child\u2019s identical statement.\n2. Assault; Child Abuse and Neglect\u2014 felony child abuse\u2014 assault with a deadly weapon inflicting serious injury\u2014 intentionally kicking child \u2014 motion to dismiss \u2014 sufficiency of evidence\nThe trial court did not err in a felony child abuse and assault \u25a0with a deadly weapon inflicting serious injury case by denying defendant\u2019s motion to dismiss based on alleged insufficient evidence to prove that defendant intentionally kicked the minor child victim, because: (1) while the statement \u201cmy daddy kicked me\u201d standing alone is insufficient to prove intent) the expert testimony presented indicated the minor child had sustained an extremely unusual severe and traumatic injury consistent with having been kicked; and (2). as the child\u2019s injury was the result of a high-energy impact equivalent to the force sustainable in a car wreck, it is reasonable to infer the injury was not accidental in nature but was the result of an intentional kick.\n3. Assault; Child Abuse and Neglect\u2014 felony child abuse\u2014 assault with a deadly weapon inflicting serious injury \u2014 intentionally kicking child \u2014 doctrine of merger inapplicable\nThe trial court did not err in a felony child abuse and assault with a deadly weapon inflicting serious injury case by failing to arrest one of the felony charges under the doctrine of merger, because each of the two offenses with which defendant was charged requires proof of elements not included in the definition of the other offense.\nAppeal by defendant from judgments dated 4 June 2001 by Judge Lindsay R. Davis in Rockingham County Superior Court. Heard in the Court of Appeals 8 October 2002.\nAttorney General Roy Cooper, by Assistant Attorney General Kirk Randleman, for the State.\nC. Orville Light for defendant appellant." }, "file_name": "0756-01", "first_page_order": 786, "last_page_order": 793 }