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State v. Boderick

Court of Appeals of North Carolina

March 20, 2018

STATE OF NORTH CAROLINA
v.
TODD ERIC BODERICK

          Heard in the Court of Appeals 10 January 2018.

         Appeal by defendant from judgments entered 23 March 2016 by Judge Robert T. Sumner in Mecklenburg County No. 12 CRS 247225, 13 CRS 3481 Superior Court.

          Attorney General Joshua H. Stein, by Special Deputy Attorney General Sonya Calloway-Durham, for the State.

          Appellate Defender Glenn Gerding, by Assistant Appellate Defender Kathryn L. VandenBerg, for defendant-appellant.

          ZACHARY, Judge.

         Defendant Todd Eric Boderick appeals from the denial of his motion to dismiss and from judgments entered upon his convictions for first-degree murder and felony child abuse following a bench trial. After a thorough review of the record and applicable law, we vacate and remand for a new trial.

         I. Factual and Procedural Background

         Defendant and Krishay Mouzon ("the mother") had a daughter ("the child") born on 25 April 2012. Defendant and the mother had custody of the child, and the mother had two additional children of whom she did not have custody. Defendant and the mother lived with the child in various hotels.

         On 27 October 2012 at approximately 9:27 p.m., police and the fire department responded to a call at the hotel where defendant, the mother, and the child were living. The emergency responders found the child, who was then six-months old, unresponsive. The child was rushed to the hospital and pronounced dead shortly thereafter. Defendant was charged with murder on 13 November 2012.

         Medical examiner Thomas Owens, M.D. performed the child's autopsy and testified as the State's expert in the field of forensic pathology at defendant's trial. Dr. Owens opined that the child died from severe brain injury and bleeding that was caused by non-accidental "blunt-force head trauma[.]" According to Dr. Owens, the pattern of injury and bleeding "indicate[d] . . . global-type activity[, ] . . . the whole head or the body being violently moved or shaken back and forth. As opposed to, if there was a fall or a single impact in just one little spot[.]"

         Dr. Owens testified that the child's time of death was 10:13 p.m. on 27 October 2012, and that in his opinion, the fatal injuries looked recent, probably having been inflicted "anywhere from a couple of hours to as much as maybe a day" before the child's death. He also found indications of prior brain trauma in the child that had likely occurred "a couple of weeks" ago.

         Dr. Owens found additional non-lethal injuries, including significant bruising and abrasions at various stages of healing on the child's head and body. The child also had thirty-eight rib fractures that had been inflicted on at least three different occasions; some occurring around one or two months ago, others about one week ago, and one that was "more than likely less than a day or two" old. Most of the child's rib fractures were in "areas [that] are extremely difficult to fracture[.]" Dr. Owens testified that the nature of the child's fractures was "clearly indicative of pressure from fingertips when a child is held or squeezed during an episode of shaking."

         When asked what "a child experiencing these types of hemorrhages [would] feel, " Dr. Owens testified that:

[A] person who has experienced [this] type of trauma often becomes immediately noticeably more lethargic. They are not themselves. They are not responding as they normally would. They may still seem conscious, but they do not interact with the world around them in a normal fashion.

         So there would be less eye opening. . . . They're very quiet.

Again, they may become completely unresponsive. There are some brain stem reflexes, like suckling, that could still occur, but the children don't usually feed normally. They don't actually take a whole bottle, you know, or actually swallow.

         At defendant's trial, the mother testified that she first noticed the child was not behaving normally on the morning of 26 October 2012, roughly a day-and-a-half before the child was pronounced dead. The night before, on 25 October 2012, the mother left the child alone in their hotel room with defendant. No one else was in the room with defendant and the child when the mother left and returned that evening. When the mother left the room, defendant had the child sitting on his lap. The mother came back about twenty minutes later and found the child lying on her stomach on the bed. The mother kissed the child, but the child did not respond and her eyes remained closed. The mother testified that she never put the child on her stomach because she would immediately start to cry, and that this was the first time that she had seen the child sleeping on her stomach. By the time the mother went to bed that evening, the child had not moved and was still sleeping.

         The mother awoke the next morning on 26 October 2012 around 9:45 a.m. The mother testified that she picked the child up and that the child's body was limp, explaining, "When I picked her up her head would go down and her body would just be weak, " and that the child's head would fall forward. The child's eyes were still closed the morning of 26 October 2012, and the mother tried unsuccessfully to open the child's eyes several times throughout the day. She tried to feed the child four times on 26 October 2012, but the child only ate one-third of what she would normally eat. The child remained limp throughout the day on 26 October 2012, and did not make any noise or move on her own. Neither defendant nor the mother sought medical attention for the child on 26 October 2012. The mother testified that she "just thought [the child] was sick, " and that when she told defendant that she thought the child was sick, defendant "didn't say anything."

         The mother left defendant and the child alone in the hotel room again on 26 October 2012 for about ten minutes around 7:00 p.m. The mother returned to find the child in the same position on the bed as when she had left. The mother asked defendant if he had shaken the child, and defendant indicated that he had not. The mother told defendant that if the child did not get better soon that she wanted to take the child to the doctor that night. Defendant did not respond, and they did not take the child to the doctor that evening.

         When the mother awoke on the morning of 27 October 2012, the child was in the same position as when she went to bed the night before. The child had made no noise overnight, and that day only ate one-third of what she would normally eat. The child's body was still limp, and she did not open her eyes. On the evening of 27 October 2012, the mother left the child with defendant alone in the hotel room around 6:00 p.m. for roughly ten minutes. The child had not moved when the mother came back. The mother left the child alone with defendant once more for ten minutes that evening around 7:50 p.m. The mother testified that the child was on top of the bed's comforter under a towel when the mother left, but was under the covers when the mother returned.

         About thirty minutes later, around 8:30 p.m. on 27 October 2012, the mother testified that she noticed the child was not breathing. Defendant checked and confirmed that the child was not breathing. The mother testified, "then I asked [defendant] can I call, can I call the paramedics. And he told me to ...


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