Heard in the Court of Appeals January 21, 2015
Attorney General Roy Cooper, by Assistant Attorney General Anne M. Middleton, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate Defender Barbara S. Blackman, for defendant-appellant.
INMAN, Judge. Judges STEELMAN and DIETZ concur.
Appeal by defendant from judgment entered 27 February 2014 by Judge Tanya T. Wallace in Union County Superior Court, No. 12 CRS 052470.
Joshua Wilford Houser (" defendant" ) appeals from judgment entered after a jury found him guilty of felony child abuse inflicting serious bodily injury. The jury also found the existence of two aggravating factors--that the crime was especially heinous, atrocious, or cruel (" EHAC" ) and that the victim was very young--and the trial court sentenced defendant in the aggravated range. On appeal, defendant argues that: (1) the trial court committed plain error in allowing an investigating officer to testify as to his opinion of defendant's guilt; (2) the trial court committed plain error in admitting evidence showing that defendant asserted his right to counsel during an interrogation; (3) the trial court committed plain error by failing to give a full jury instruction on the aggravating factor of EHAC; and (4) the trial court reversibly erred by failing to conduct a charge conference during the penalty phase of the trial.
After careful review, we find no error in the guilt-innocence phase of the proceedings, no plain error in the trial court's EHAC instruction, and no material prejudice in the trial court's failure to fully comply with the statutory mandate to conduct a charge conference.
Defendant lived with his wife, Kirbi Davenport (" Ms. Davenport" ), and Ms. Davenport's three-year-old daughter from a previous relationship, K.D, in a mobile home in Indian Trail near Ms. Davenport's parents.
On 16 May 2012, defendant stayed home to watch K.D. while Ms. Davenport was at work. Ms. Davenport called at 2:30 p.m. and spoke with K.D., who sounded normal and said she was having a good day. Ms. Davenport's mother called and spoke with K.D. at 5:30 p.m.; K.D. said she had eaten, taken a bath, and was waiting for her mother to come home.
At 6:07 p.m. defendant called 911. Defendant told the dispatcher that K.D. had urinated in her clothes, fallen from a standing position, and injured her head. Defendant said he picked her up and shook her but she was nonresponsive. The 911 dispatcher alerted the Union County Sheriff's department because defendant's " extremely hectic and excited" demeanor made the dispatcher uncomfortable and raised his suspicion that a crime may have occurred.
Emergency personnel arrived at 6:17 p.m. K.D. was in the front seat of a truck parked outside the home. EMTs noticed that she was not breathing properly and that her eyes had rolled toward the top of her head. In a statement prepared approximately an hour after arriving at the scene, emergency rescue volunteer Robert Holloway wrote that defendant told him that K.D. had fallen and hit her chin.
Defendant told Ms. Davenport on the phone that he heard a thud when K.D. went into the bathroom to clean herself up after urinating in her pants. He said that K.D. was getting up off the floor when he walked into the bedroom. When defendant scooped her up and took her pants off, K.D. keeled backward and defecated on herself. Defendant claimed that he punched a hole in the wall because the 911 dispatcher could not understand him when he was trying to give his address. Volunteers thought defendant seemed calm and detached until he spoke on the phone to his wife, at which time he raised his voice to seem anxious and nervous. Ms. Davenport's mother also testified that defendant exhibited no emotion later at the hospital.
K.D. arrived at the hospital in a coma. The attending neurosurgeon noted that internal blood visible on the CT scan reflected a recent injury, not one days or weeks old. The doctor noticed two types of skull fractures, the first being a diastatic fracture on the suture line in the skull that grows and molds together by the time the child is 18 months old. The suture line had been broken apart, an injury which the doctor testified required significant force. The second fracture was a crack running through the hard portion of the skull. K.D. also had bleeding on both sides of her head, in between the lobes of her brain, and under the lining of the brain.
Immediate surgery was needed to remove blood clots, stop bleeding, and treat the swelling in K.D.'s brain. After removing a portion of K.D.'s skull, the doctor removed blood clots and blood that had soaked in between the lobes of K.D.'s brain. During the procedure, K.D.'s brain swelled outward between one half of an inch to an inch beyond her skull. The continued swelling required further cutting from the skull, but even then, K.D.'s brain was so swollen that the doctors had difficulty replacing K.D.'s scalp after surgery.
K.D. was in the hospital for a total of 65 days. Due to the injuries to her brain, she was no longer able to walk, stand up on her own, hold up her head, or feed herself, and she became incontinent. For six months after surgery, K.D. required a tracheotomy tube in her neck to help her breathe. She required around the clock care, which her mother and grandmother provided. The neurosurgeon testified that K.D.'s brain injuries were of the most severe kind, resembling those that can be inflicted by ejection from a car, war wounds, or a fall from a significant height.
Shortly after riding with K.D. to the hospital, defendant returned to his home with Lieutenant Brian Helms of the Union County Sheriff's Department (" Lt. Helms" ) and Special Agent Brandon Blackman of the State Bureau of Investigation (" Special Agent Blackman" ). They photographed the interior of the home, including the hole in the sheetrock of the master bedroom next to the
master bathroom door. After being asked about the hole in the sheetrock by the officers, defendant said he had punched it in frustration when the 911 operator couldn't understand what he was saying over the telephone. Defendant asked the officers to leave when they intimated a belief that he had hurt K.D.
Later, Special Agent Blackman reviewed the photographs and saw what appeared to be blonde hair in the hole of the sheetrock. He testified that this was inconsistent with defendant's statement that defendant had created the hole with his fist, causing the officers to seek consent from Ms. Davenport to search the home and collect the hair. Lt. Helms and Special Agent Blackman went back to the home with Crime Scene Investigator Chris McTeague (" McTeague" ). McTeague removed two head hairs from the sheetrock, which he testified were not laying on top of the rock but were partially embedded and provided resistance when he tried to pull them from the damaged area. Subsequent DNA analysis showed that the hairs belonged to K.D. Both hairs were anagen phase hairs, meaning that they were actively growing when they were removed and would have required force to be pulled from K.D.'s head.
Defendant was arrested following the collection of the hairs. He waived his Miranda rights and agreed to give a recorded interview to detectives with the Union County Sheriff's Office. When officers accused him of hurting K.D., he asserted his right to counsel and ended the interview.
Defendant testified at trial that while he was cooking dinner on the night in question, K.D. told him that she needed to " pee." Defendant saw that her pants were already wet, so he " popped" her on the " butt" and told her to go into the master bathroom to wash up. He then heard a thud from the bathroom, and when he looked in, he saw K.D. trying to get up from her hands and knees. Defendant tried to hold her up, but K.D. went stiff and defecated on herself. Defendant then cleaned K.D. and called 911. He claimed that he punched the wall in frustration when the 911 dispatcher couldn't understand him, causing the hole in the sheetrock.
The jury found defendant guilty of felony child abuse inflicting serious bodily injury. The trial court then proceeded with a separate penalty phase necessary for the jury to determine the existence of aggravating factors alleged by the State. After the jury found beyond a reasonable doubt that the crime was especially heinous, atrocious or cruel and that the victim was very young, the trial court sentenced defendant in the aggravated range to 92 to 123 months imprisonment. Defendant gave notice of appeal in open court.
I. Officer Testimony
Defendant first argues that the trial court committed plain error by admitting testimony from Lt. Helms that the existence of K.D.'s hairs in the sheetrock of the home was inconsistent with defendant's account of the incident. After careful review, we find no error.
Because defendant did not object to the admission of Lt. Helms's testimony, we review for plain error. See State v. Cummings, 361 N.C. 438, 469, 648 S.E.2d 788, 807 (2007). " To show plain error, the defendant must convince this Court not only that there was error, but that absent the error, the jury probably would have reached a different result; or we must be convinced that any error was so fundamental that it caused a miscarriage of justice." State v. Elkins, 210 N.C.App. 110, 119, 707 S.E.2d 744, 751-52 (2011) (citation and quotation marks omitted); see also State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012).
Lay witness testimony in the form of opinions or inferences " is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding ...