in the Court of Appeals 10 January 2018.
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.
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.
Factual and Procedural Background
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
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.
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[.]"
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.
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."
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.
there would be less eye opening. . . . They're very
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
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
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."
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.
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.
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 ...