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State v. Cheeks

Court of Appeals of North Carolina

October 1, 2019

STATE of North Carolina
v.
Thomas Allen CHEEKS

         Heard in the Court of Appeals 24 April 2019.

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          Appeal by defendant from judgment entered 1 November 2017 by Judge Hugh B. Lewis in Superior Court, Gaston County, No. 15 CRS 62458; 17 CRS 845.

         Attorney General Joshua H. Stein, by Special Deputy Attorney General Derrick C. Mertz, for the State.

         Appellate Defender G. Glenn Gerding, by Assistant Appellate Defender Daniel Shatz, for defendant-appellant.

          OPINION

         STROUD, Judge.

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          Defendant appeals from his conviction following a bench trial for first degree murder by starvation under North Carolina General Statute § 14-17(a) and negligent child abuse under North Carolina General Statute § 14-318.4(a4), both arising from the mistreatment and death of his four-year-old stepson, Malachi Golden. There was sufficient competent evidence to support the trial court’s conclusion that defendant intentionally starved his four-year-old stepson Malachi and that starvation was the proximate cause of his death. As to his conviction for negligent child abuse, there was no fatal variance between the evidence presented at trial and the indictment. After careful review of Defendant’s arguments and all of the evidence, we find no error in the trial court’s judgment.

          I. Procedural and Factual Background

         Defendant Thomas Allen Cheeks was charged with first degree murder, negligent child abuse resulting in serious injury, and intentional child abuse resulting in serious injury, all arising from the death of Malachi Golden. He waived jury trial, and a five-day bench trial was conducted starting on 23 October 2017 before the Superior Court, Gaston County. On 1 November 2017, the trial court entered verdicts finding defendant not guilty of intentional child abuse, guilty of negligent child abuse, and guilty of first degree murder by starving but not guilty of murder "with premeditation and deliberation where a deadly weapon is used," felony murder, or murder by torture.[1] Defendant was sentenced to life imprisonment without parole. Defendant gave notice of appeal in open court.

          The evidence showed that Malachi Golden was born on 15 November 2010. At the time of his death, Malachi lived with his mother, Tiffany Cheeks, his stepfather, Defendant, and his two younger half-sisters, both the biological children of Mrs. Cheeks and Defendant. Malachi’s biological father was never involved in his life. His mother began living with Defendant in 2012, and they were married on 1 November 2013.

         Malachi began having "infantile spasms" when he was about 4 months old, and Mrs. Cheeks took him to see his pediatrician, who referred Malachi to a pediatric neurologist, Dr. Robinett. Dr. Robinett determined he was suffering from seizures and prescribed an anti-epileptic medication, Zonisamide. Upon further testing, physicians determined Malachi had a chromosomal abnormality, a microdeletion in chromosome 22. They recommended additional testing to determine whether the abnormality was inherited and likely insignificant, or a new mutation that may be clinically significant, but Mrs. Cheeks never returned to have additional testing done. Mrs. Cheeks stopped taking Malachi to the pediatric neurologist in June 2013, one month after her first child with Defendant was born. Sometime in 2014, without consulting a physician, Mrs. Cheeks stopped giving Malachi his medication.

          Malachi had trouble walking and was referred to the Child Development Services Agency (CDSA), which began therapy services. With therapy, his fine motor skills improved, his walking improved, and he was learning to feed himself. At age 3, on 15 November 2013, he aged out of the CDSA therapy services in the home and began to receive therapy at a local elementary school, but Mrs. Cheeks often failed to take him to his therapy appointments because she "just didn’t feel like going" and stopped completely in December 2014, one month after the birth of her second child with Defendant.

          The therapists mentioned in the trial court’s findings of fact below had come to the home to provide services to Malachi’s younger sisters, not Malachi, since Mrs. Cheeks had stopped taking him to therapy appointments. 5 February 2015, was the last day a therapist saw Malachi in the home, although she was there to provide therapy for his sister. The therapist commented about how thin Malachi was becoming. The therapist returned to the home for appointments in April but did not see Malachi. After the April

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appointments, Mrs. Cheeks cancelled therapy for her daughter.

          At about 10:00 p.m. on 11 May 2015, Ms. Cheeks called 911 regarding Malachi. When EMS arrived, they found Malachi lying dead in an undecorated room. Malachi was extraordinarily emaciated. Although he was nearly five years old, he was wearing clothing sized for 24 months and 3T, and the clothes were hanging off of him. His bones protruded, his stomach and face were taunt, and his head disproportionately large for his body. The doctor that performed the autopsy estimated that Malachi had been lying on his back after death from a few hours to one or two days.

         Besides his obvious emaciation, Malachi had other injuries and signs of severe and protracted neglect. He had head injuries and pressure ulcers where his bones had laid against one another; injuries to his groin and genital area, including sores in various stages of healing, some beyond the point of septic infection. Specialist Justin Kirkland, crime scene investigator for the Gaston County Police Department, had investigated crime scenes for almost 10 years. He was one of the first investigators on the scene and took many of the photographs. Upon examining Malachi, he noted that Malachi had

a large sore on his right groin area. When we turned him over there was -- I would call it large sores, but it was severe diaper rash as well on his bottom. He had large sores on his bottom, something I have never seen before on a child in a death investigation.

         The medical examiner also testified had never seen anything like Malachi’s pressure sores and extreme diaper rash in a child.[2] Neither of the other children were visibly malnourished, and police found plenty of food in the home, in both the kitchen cabinets and refrigerator.

         After Malachi’s death, officers from the Gaston County Police Department interviewed both Defendant and Mrs. Cheeks several times regarding Malachi and the events surrounding his death. Defendant made several conflicting statements to police regarding Malachi’s death and his condition leading up to his death. Defendant was not working and was the primary caregiver for Malachi for at least two months before his death. On 11 May 2015, he initially told police he had fed Malachi Spaghettios but he had thrown up, and he had checked on him several times during the day he died. In the second interview, on 14 May 2015, he gave a different timeline of events and said he had fed Malachi a "Kid Cuisine," a "grape-apple pouch[ ] squeeze food," and water. His third and final interview was on 30 October 2015 by Detective Brienza. Detective Brienza received the original, unamended autopsy report on 15 October 2015.[3] He then met with Defendant and Mrs. Cheeks again because the "inconsistencies were too great at this point based on the autopsy report." He found inconsistencies in the medication Malachi should have been receiving for his seizure disorder (since Mrs. Cheeks and Defendant claimed his doctors had taken him off medication, but the medical records showed his physician had actually increased the dosage), in the percentages of caretaking responsibilities between Defendant and Mrs. Cheeks, the "huge discrepancy" as to the food Defendant had claimed to have given Malachi and what was found on the autopsy, and evidence of head injuries.

          At the third interview, Defendant "had a couple different versions of killing Malachi." His first version was that "Malachi drowned because he gave him too much fluid while in the bath tub" and Malachi had been dead for two days before the 911 call. Detective Brienza noted that the autopsy did not indicate Malachi had drowned. Defendant then said he had put his hands around Malachi’s neck to keep him quiet. He said Malachi’s moaning "frustrated him greatly." His "method of operation" was to

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put his hands around Malachi’s throat and pick him up by his neck and choke him enough to quiet him. ... Once Malachi would become limp, he would physically throw him in the Pack N Play from a distance, walk to the doorway, turn around to see if he was okay, if he was going to make any sound or movement. Once he saw that movement he then left.

          Defendant claimed he did this to Malachi "five times a week for the last two months" and had been "throwing him around, smacking him, whooping him almost on a daily basis[.]" Defendant said he was frustrated over Malachi’s moaning again on 11 May 2015, so after using his regular "method of operation" to quiet him, he also hit him several times on the head with a hard object. He said he watched Malachi "take his last few gasps of breath." He claimed "he bathed Malachi after he was dead for a long period of time," washing his hair and body as if he were alive, and then he put clothing and a new diaper on him and placed him in his bed with a blanket over him.

          Defendant testified at trial and gave yet another entirely different story of what happened prior to Malachi’s death. He testified that after Mrs. Cheeks left for work around noon, he changed Malachi’s diaper, applied diaper rash cream, and fed him lunch. He could not recall exactly what Malachi ate, but it was "normal food" such as "Kid Cuisine, Hungy-Man, hot dogs, chicken nuggets, french fries." He also gave him juice and put him back in his playpen. He then went to take care of the other two children. Around 4:30 p.m., Malachi woke up and Defendant heard his normal moaning sounds. His diaper was dry, so he did not need to be changed, and he then fed Malachi some fruit snacks. He testified that Malachi "grabs as much as he can and stuffs them in the mouth" but most of them he would end up missing his mouth, so he would then give him more. He also fed him a Kid Cuisine, string cheese, and yogurt bites at about 4:30 p.m. After Malachi ate, Defendant testified he gave him a bath, changed his diaper, and put him back in his playpen. Defendant fed the two girls as well, and by 5:30 p.m. all three children were sleeping, and he went outside to smoke a cigarette. Defendant then came back inside and took a nap until about 7:30 p.m. He then checked on Malachi, changed his diaper, and fed him again, not a "whole meal" but string cheese and a Juicy Juice box. He then put Malachi back in his playpen and tended to the other children. Sometime around 8:00 p.m. he checked on Malachi again, and he appeared to be sleeping. He was not moaning, but Defendant could hear him breathing. He went outside to smoke again, and Mrs. Cheeks got home around 10:00 p.m. She went to check on Malachi and then called for Defendant, saying, "There is something wrong with Malachi. I think he is dead." Defendant told her, "There is no way because I just checked on him hours before." Defendant said he took Malachi out of the playpen and laid him on the floor while Mrs. Cheeks called 911. The 911 operator told them to administer CPR, so he tried to administer CPR but did not want to use too much pressure, since he had only been trained to do CPR on adults when he was in the military.

          Defendant testified at trial his statements to Detective Brienza were lies and he had said what he did because "he told me we have this autopsy" but did not tell him what the autopsy said. He said he drowned Malachi but Detective Brienza said that was a lie based on the autopsy so Defendant "gave him another option saying I hit him in the head." Defendant denied that he had ever choked Malachi or thrown him into the playpen to make him be quiet. Defendant claimed he told Detective Brienza the things he did because "I was going to take the blame" to protect Mrs. Cheeks. In response to the photographs of Malachi, Defendant testified, "I can’t explain that. I know I fed my son." He testified that his ribs did not look like they did in the photographs, and his diaper rash was just regular diaper rash.

         Mrs. Cheeks also gave several different versions of events. In her initial statement, she claimed she did not know what had happened to Malachi and neither she nor Defendant realized he was dead until she found him and called 911. She then gave a statement implicating Defendant on 2 November 2015, regarding his abuse of Malachi and

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stating that she knew Defendant had killed Malachi. She said she already knew Malachi was dead before she called 911, and she did not perform CPR because she did not know how. Based upon her statement implicating Defendant, she entered into a plea arrangement with the State and plead guilty to a reduced charge of accessory after the fact of first degree murder and negligent child abuse resulting in serious injury. But at trial, she recanted her prior statements against Defendant and agreed that she "pretty much would do anything" for Defendant "to be found not guilty."[4]

         The trial court entered an order with findings of fact, and Defendant does not challenge the findings of fact as unsupported by the record, so we will quote the trial court’s order as to the facts[5] of this case:

1. The deceased victim was Malachi Golden, a four-year-old boy.
2. Malachi Golden’s caregivers were his mother, Tiffany Cheeks, and Defendant.
3. Tiffany Cheeks and Defendant married in November of 2013.
4. Defendant, Tiffany Cheeks, Malachi Golden and the two younger female half-siblings lived in an apartment in High Shoals.
5. Malachi Golden’s younger half-siblings were the children of Defendant and Tiffany Cheeks.
6. Malachi Golden died on May 11, 2015.
7. Malachi was discovered laying on the floor in a room that appeared more like a storage room than a child’s bedroom with materials piled in the comers and along the walls.
8. Inside the room was a "Pack and Play" a portable playpen for infants.
9. Malachi Golden spent the majority of the time during the last five months of his life in the "Pack and Play."
10. At the time of death, Malachi Golden had a plastic appearance with sunken eyes, collarbones, protruding spine, protruding joints and protruding ribs.
11. At the time of death, Malachi Golden had very little body fat or muscle tissue.
12. At the time of death, Malachi Golden’s internal organs were about half the average size for a four-year-old boy.
13. Dehydration caused the abnormal size of the internal organs.
14. The dehydration occurred over several weeks.
15. The autopsy revealed that Malachi Golden was malnourished and dehydrated.
16. At the time of death, Malachi Golden weighed 19 pounds compared to the average weight of a [sic] 38-40 pounds for a four-year-old boy.
17. At the time of death, Malachi Golden’s skin exhibited "tenting" a sign of acute dehydration.[6]
18. At the time of death, Malachi Golden had a very wasted appearance.
19. At the time of death, Malachi Golden’s skin also exhibited acute wrinkling

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in the armpit and hip joint areas which is a sign of severe malnutrition.
20. Malachi Golden suffered acute diaper rash with extensive inflammation on his buttocks and groin.
21. Some of the ulcers, or wounds, caused by the diaper rash were healing while others were open sores that exhibited bleeding.
22. Malachi Golden suffered from the acute diaper rash for an extended period without proper treatment.
23. Staying in soiled diapers for long periods of time caused the diaper rash.
24. Malachi Golden also suffered from bed sores on his legs and knees from his lying in the "Pack and Play" for extensive periods of time without being moved or given proper attention.
25. Doctors diagnosed Malachi Golden with a genetic disorder and seizure disorder shortly after birth.
26. The seizures consisted of Malachi Golden losing control of his body and dropping to the ground.
27. Seizures would only last for a few seconds to a few minutes.
28. There was no danger that the seizures would cause death in and of themselves.
29. For Malachi Golden’s safety, he wore a helmet to protect his head when he dropped to the ground during a seizure.
30. Malachi Golden did not wear the helmet when he was in his "Pack and Play."
31. Malachi Golden took the prescribed medication called Zonegram Zonisamide for his seizures.
32. Malachi Golden did well on medication and responded positively to therapy.
33. With medication and therapy, Malachi Golden began walking some and was feeding himself with supervision.
34. Malachi Golden’s walking improved from a few feet to the length of the courtroom by the time the caregivers stopped allowing the child to have therapy in December of 2014.
35. The caregivers ceased Malachi Golden’s medication, medical care and therapy sessions at, or near, December of 2014.
36. The caregivers ceased all medication, medical care, and therapy sessions without consulting Malachi Golden’s physicians.
37. For the last few months of his life, Malachi Golden was cloistered from all adults except Tiffany Cheeks and Defendant.
38. During this period, Defendant became the primary caregiver for Malachi Golden and provided up to 80 percent of the child’s care.
39. Defendant spent most of his time sleeping, watching movies or playing video games.
40. Defendant rarely fed Malachi Golden more than one time a day.
41. Neither Defendant nor Ms. Tiffany Cheeks ever took Malachi Golden to the doctor because of the weight loss.
42. Ms. Tiffany Cheeks was afraid that one day Defendant would hurt her.
43. Malachi Golden was a "chubby" child before October 2013.
44. In December of 2014, Malachi Golden was hungry when he met with the ...

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