{
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  "name": "STATE OF NORTH CAROLINA v. GREGGORY GEORGE MOSHER, JR., Defendant",
  "name_abbreviation": "State v. Mosher",
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    "judges": [
      "Judges CALABRIA and STROUD concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. GREGGORY GEORGE MOSHER, JR., Defendant"
    ],
    "opinions": [
      {
        "text": "DAVIS, Judge.\nGreggory George Mosher, Jr. (\u201cDefendant\u201d) appeals from his convictions for one count of felony child abuse resulting in serious bodily injury in violation of N.C. Gen. Stat. \u00a7 14-318.4(a3) and one count of felony child abuse resulting in serious bodily injury in violation of N.C. Gen. Stat. \u00a7 14-318.4(a4). Defendant\u2019s sole argument on appeal is that the trial court erred in entering judgment on both of his convictions because the two offenses are mutually exclusive. After careful review, we affirm the trial court\u2019s judgment.\nFactual Background\nThe evidence presented at trial tended to establish the following facts: In September of 2009, Defendant married Rebecca Mosher (\u201cMs. Mosher\u201d) and became a stepfather to her two young children, \u201cAmy\u201d and \u201cNoah.\u201d Defendant was deployed to Iraq in December of 2009, and when he returned from his deployment, he lived with Ms. Mosher and the children at a home in Richlands, North Carolina. Their next-door neighbors, Jack Underwood (\u201cMr. Underwood\u201d) and Justus Underwood (\u201cMrs. Underwood\u201d), had observed bruising on the children before the subject incidents.\nOn 14 May 2010, Ms. Mosher, accompanied by Defendant, visited the Underwoods\u2019 home and requested that Mr. Underwood examine Noah\u2019s arm, which was swollen. Mr. Underwood recommended that Noah be taken to the hospital because he might have a broken arm or wrist. Mrs. Underwood testified that during this encounter, Ms. Mosher was standing behind Defendant and trying to catch her attention in a way that Mrs. Underwood interpreted as meaning: \u201cThis is suspicious; you need to pay attention.\u201d Later that day, Ms. Mosher showed Mrs. Underwood marks on the children\u2019s bodies, including bruising on Noah\u2019s arm, legs, and side and bruising on Amy\u2019s back. Mrs. Underwood further explained that \u201c[t]he children did not have marks on them prior to [Defendant] coming home. They would mysteriously appear when [Ms. Mosher] would be out.\u201d\nOn the evening of 23 May 2010, Defendant was at home alone with Amy and Noah. At the time, Amy was two years old and Noah was three years old. Neither Amy nor Noah testified at trial; therefore, the evidence regarding the specific events giving rise to Defendant\u2019s convictions consisted entirely of Defendant\u2019s own testimony and testimony concerning the accounts he had provided to physicians and a social worker.\nAt approximately 7:00 p.m., Defendant began preparing a bath for Amy and Noah. Defendant turned on the water and placed the children into the bathtub. As the water was running and filling up the tub, Defendant heard his dog fighting outside and making a sound that Defendant described as \u201ca vicious growl.\u201d Defendant testified that he left the children in the tub with the water running and went to check on the dog. He kicked another dog off of his dog, placed his dog\u2019s collar and chain back on, and returned to the bathroom. Defendant estimated that he had left the children in the tub for what \u201cfelt like a minute.\u201d Immediately upon returning to the bathroom, Defendant saw Noah standing outside the tub. Amy was still in the tub, screaming and \u201csplashing to get out.\u201d Defendant grabbed Amy out of the tub and saw that her legs were peeling. He reached to turn off the water and noticed that the cold water faucet was off. When he pulled out the drain plug, he discovered the bath water was \u201chot.\u201d\nAmy was taken to the hospital and remained hospitalized until 12 July 2010. She sustained bums to approximately 44 percent of her body and underwent two surgeries to remove the burned skin and replace it with healthy tissue. Dr. Kenya McNeal-Trice (\u201cDr. McNeal-Trice\u201d), a board-certified pediatrician and a member of Amy\u2019s treatment team at the North Carolina Children\u2019s Hospital, was tendered and accepted as an expert witness in the field of pediatrics and child abuse and neglect. She testified to a reasonable degree of medical certainty that Amy\u2019s injuries were consistent with an intentional \u2014 rather than accidental \u2014 bum and explained that the pattern of Amy\u2019s bum injuries was not consistent with the information Defendant had conveyed to her about how the injuries had occurred. Specifically, Dr. McNeal-Trice testified that Amy\u2019s bums were \u201cmore consistent with being exposed for a period of time in a still position in hot water and not splashing to get out.\u201d She explained that if Amy had been standing and splashing to get out, the backs of her legs would not have remained unbumed and instead Amy would have sustained a circumferential bum \u201call the way around her leg.\u201d\nIn addition, Dr. McNeal-Trice opined that the fact that Amy did not bum her hands, stomach, or torso was inconsistent with a child splashing to get out of scalding hot water. Dr. McNeal-Trice noted that there were \u201csharp water demarcation Unes\u201d on Amy\u2019s thighs, a potential indication that the bum was intentionally inflicted, and that Amy had pete-chial bruising on her sternum, which was likely caused by \u201csome type of either pressure or force\u201d being applied to her chest.\nDefendant\u2019s expert witness, Dr. Allen Dimick (\u201cDr. Dimick\u201d), was tendered and accepted as an expert in the fields of bum trauma care, bum surgery, and pre-hospital emergency care. He examined Amy\u2019s medical records, records from the investigation conducted by the Onslow County Sheriff\u2019s Office, and photographs of her bums and testified to a reasonable degree of medical certainty that Amy\u2019s bums \u201cwere completely accidental and not intentional.\u201d Dr. Dimick testified that in his opinion, Amy likely suffered the second-degree \u201cscald bums\u201d on her back and buttocks from lying or falling back into the hot water and reacted to those bums by changing position to kneel on her knees, which resulted in the more severe bums to her thighs, legs, and the tops of her feet.\nDr. Dimick conceded, however, that he had \u201cdifficulty understanding\u201d how Amy had sustained her particular bum injury pattern and that it was \u201chard to envision how that could occur\u201d unless she had fallen backwards on her back into the water and then changed position to kneel on her knees. Dr. Dimick testified that he did not believe that Amy\u2019s injuries were consistent with someone \u201cpushing her backward and holding her down,\u201d noting that the bums to her back were less severe, indicating a briefer exposure to the hot water. However, he did agree that Amy \u201ccertainly\u201d could have sustained the bums to her back if she was pushed down into the water for a brief period of time.\nOn 18 January 2011, Defendant was indicted on two felony child abuse charges. The first charge alleged that Defendant had intentionally inflicted a serious bodily injury to Amy in violation of N.C. Gen. Stat. \u00a7 14-318.4(a3), and the second charge alleged that Defendant, by a willful act or grossly negligent omission, showed a reckless disregard for human life which resulted in serious bodily injury to Amy in violation of N.C. Gen. Stat. \u00a7 14-318.4(a4).\nA jury trial was held on 15 April 2013, and on 23 April 2013, the jury returned a verdict finding Defendant guilty of both offenses. The trial court consolidated the offenses and entered a judgment sentencing Defendant to a presumptive-range term of 58 to 79 months imprisonment. Defendant gave notice of appeal in open court.\nAnalysis\nDefendant contends that the trial court erred in entering judgment on both counts of felony child abuse\u2014the intentional infliction of a serious bodily injury to a child in violation of N.C. Gen. Stat. \u00a7 14-318.4(a3) and the willful act or grossly negligent omission showing a reckless disregard for human life and resulting in a serious bodily injury to a child in violation of N.C. Gen. Stat. \u00a7 318.4(a4) \u2014 because the two offenses are mutually exclusive. We disagree. As explained below, we conclude that the evidence at trial permitted the jury to find both that (1) Defendant acted in reckless disregard for human life by initially leaving Amy and Noah unattended in a tub of scalding hot water; and (2) after a period of time, Defendant returned to the tub and intentionally held Amy in that water.\nCriminal offenses are mutually exclusive if \u201cguilt of one necessarily excludes guilt of the other.\u201d State v. Mumford, 364 N.C. 394, 400, 699 S.E.2d 911, 915 (2010) (citation and quotation marks omitted). For example, our Supreme Court has held that a defendant may not be convicted of both embezzlement and obtaining property by false pretenses when the charges arise out of the same act or transaction, explaining that\nto constitute embezzlement, the property in question initially must be acquired lawfully, pursuant to a trust relationship, and then wrongfully converted. On the other hand, to constitute false pretenses the property must be acquired unlawfully at the outset, pursuant to a false representation. This Court has previously held that, since property cannot be obtained simultaneously pursuant to both lawful and unlawful means, guilt of either embezzlement or false pretenses necessarily excludes guilt of the other.\nState v. Speckman, 326 N.C. 576, 578, 391 S.E.2d 165, 166-67 (1990) (internal citations omitted).\nHere, Defendant was convicted of two counts of felony child abuse under two separate subsections of N.C. Gen. Stat. \u00a7 14-318.4. The first count, child abuse inflicting serious bodily injury in violation of \u00a7 14-318.4(a3), required the State to prove that Defendant (1) is a parent or any other person providing care to or supervision of a child less than 16 years of age; and (2) intentionally inflicted any serious bodily injury to the child. See N.C. Gen. Stat. \u00a7 14-318.4(a3) (2013).\nDefendant\u2019s second count, child abuse by willful act or negligent omission showing a reckless disregard for human life resulting in serious bodily injury, required the State to establish that (1) Defendant is a parent or any other person providing care to or supervision of a child less than 16 years of age; (2) Defendant\u2019s willful act or negligent omission in the care of the child showed a reckless disregard for human life; and (3) the act or omission resulted in serious bodily injury to the child. See N.C. Gen. Stat. \u00a7 14-318.4(a4).\nDefendant argues that the mens rea component of each offense makes the two crimes mutually exclusive because \u201c[i]f one\u2019s conduct is intentional, as required to establish the offense defined in subsection (a3) of the statute, it is not any sort of negligence\u201d and that \u201cif one\u2019s conduct is any sort of negligence showing reckless disregard for human life, as required to establish the offense defined in subsection (a4) of the statute, it is not intentional.\u201d We conclude, however, that there was substantial evidence presented at trial permitting the jury to find that two separate offenses occurred in succession such that the two charges were not mutually exclusive.\nWe are guided by our decision in State v. Johnson, 208 N.C. App. 443, 702 S.E.2d 547 (2010), disc. review denied, _ N.C. _, 706 S.E.2d 247 (2011), which \u2014 although arising in a wholly different factual context than the present case \u2014 sheds light on the legal issue presented here. In Johnson, the defendant argued that the trial court erred by entering judgment on both his conviction for felony entering and his conviction for discharging a firearm into an occupied dwelling inflicting serious bodily injury because the two offenses were mutually exclusive. Id. at 448, 702 S.E.2d at 551. Specifically, he argued that the trial court should not have entered judgment against him for discharging a firearm into the victim\u2019s residence because his entry into the residence had already been accomplished at the time the shots were fired. Id.\nWe rejected this argument, holding that the facts of the case were sufficient to support a conclusion that the two crimes were committed in succession and, as a result, the defendant\u2019s guilt of one offense did not exclude his guilt of the other. Id. at 449, 702 S.E.2d at 551. We explained that the evidence tended to show that the defendant and his coperpetrator, acting in concert, committed the entry when the coper-petrator inserted his hand into the partially-opened front door. He then removed his hand (and the firearm he was holding) from the interior of the residence and subsequently fired into the home through the door as evidenced by a bullet hole found in the door panel above the lock. Id. We concluded that these facts established that the two offenses occurred in succession and, therefore, were not mutually exclusive, finding merit in the State\u2019s contention that \u201c[t]he mere fact that the shooter entered [the victim\u2019s] house at one point does not mean that the shooter was at all times thereafter inside [the victim\u2019s] house.\u201d Id.\nHere, evidence was presented from which a reasonable juror could conclude that Defendant both (1) committed a willful act or negligent omission showing a reckless disregard for human life resulting in a serious bodily injury to Amy by leaving her unattended in a bathtub with the water on; and (2) intentionally inflicted a serious bodily injury to Amy thereafter by deliberately immersing her in scalding water.\nDefendant, by his own admission, left Amy and Noah, who were two and three years old respectively, unattended in the bathtub while the water was running for what \u201cfelt like a minute.\u201d Defendant testified that he thought he turned on both the hot and cold water but that he could not be certain. Evidence was presented at trial that when the hot water is turned on in that bathtub, the water reaches 100 degrees Fahrenheit in 10 seconds, 115 degrees in 20 seconds, 119 degrees in 30 seconds, and 184 degrees in one minute. There was also testimony that an individual would sustain a third-degree bum from one second of exposure to 155-degree water, five seconds of exposure to 140-degree water, and 60 seconds of exposure to 127-degree water. We believe that from this evidence the jury could reasonably conclude that Defendant, by leaving the children alone in the tub, acted in a manner that showed a reckless disregard for human life, thereby constituting a violation of N.C. Gen. Stat. \u00a7 14-318.4(a4).\nWe also conclude that substantial evidence was presented supporting a finding of a separate act of intentional infliction of a serious bodily injury. The State put forth circumstantial evidence that Amy was intentionally immersed in scalding hot water by Defendant. Specifically, the State offered evidence that (1) Amy had braising on her chest, suggesting the application of pressure or force to that area of her body; and (2) the bums on her legs had sharp demarcation lines, indicating that she was forcibly held still while in the tub. This evidence was sufficient to support a conviction for intentionally inflicting serious bodily injury to Amy in violation of N.C. Gen. Stat. \u00a7 14-318.4(a3).\nAs such, the jury could have reasonably concluded that two separate, successive acts of felonious child abuse occurred \u2014 one causing \u00e1 serious bodily injury through a reckless disregard for human life and one intentionally causing such an injury. A finding by the jury that Defendant acted in reckless disregard for human life by initially leaving Amy and Noah unattended in the tub did not preclude a separate finding that Defendant\u2019s conduct upon returning to the tub was intentional. Consequently, Defendant\u2019s argument is overruled, and the trial court\u2019s judgment is affirmed.\nConclusion\nFor the reasons stated above, we affirm the trial court\u2019s entry of judgment on Defendant\u2019s felony child abuse convictions.\nAFFIRMED.\nJudges CALABRIA and STROUD concur.\n. Pseudonyms are used throughout this opinion to protect the privacy of the minor children.\n. The statute defines serious bodily injury as \u201c[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 or organ, or that results in prolonged hospitalization.\u201d N.C. Gen. Stat. \u00a7 14-318.4(d)(l).",
        "type": "majority",
        "author": "DAVIS, Judge."
      }
    ],
    "attorneys": [
      "Roy Cooper, Attorney General, by Teresa M. Postell, Assistant Attorney General, for the State.",
      "Cheshire Parker Schneider & Bryan, PLLC, by John Keating Wiles, for defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. GREGGORY GEORGE MOSHER, JR., Defendant\nNo. COA13-1101\nFiled 5 August 2014\nSentencing\u2014felony child abuse resulting in serious bodily injury\u2014two separate offenses\u2014charges not mutually exclusive\nThe trial court did not err by entering judgment on defendant\u2019s convictions for both felony child abuse resulting in serious bodily injury in violation of N.C.G.S. \u00a7 14-318.4(a3) and felony child abuse resulting in serious bodily injury in violation of N.C.G.S. \u00a7 14-318.4(a4). There was substantial evidence presented at trial permitting the jury to find that two separate offenses occurred in succession such that the two charges were not mutually exclusive.\nAppeal by defendant from judgment entered 23 April 2013 by Judge Charles H. Henry in Onslow County Superior Court. Heard in the Court of Appeals 6 February 2014.\nRoy Cooper, Attorney General, by Teresa M. Postell, Assistant Attorney General, for the State.\nCheshire Parker Schneider & Bryan, PLLC, by John Keating Wiles, for defendant-appellant."
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