in the Court of Appeals 24 April 2019.
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.
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
Procedural and Factual Background
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. Defendant was sentenced to life
imprisonment without parole. Defendant gave notice of appeal
in open court.
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.
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.
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.
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 appointments, Mrs.
Cheeks cancelled therapy for her daughter.
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.
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
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
medical examiner also testified had never seen anything like
Malachi's pressure sores and extreme diaper rash in a
child. Neither of the other children were visibly
malnourished, and police found plenty of food in the home, in
both the kitchen cabinets and refrigerator.
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. 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.
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
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.
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
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.
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
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 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."
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 of this case:
1.The deceased victim was Malachi Golden, a four-year-old
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
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
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
14.The dehydration occurred over several weeks.
15. The autopsy revealed that Malachi Golden was malnourished
16. At the time of death, Malachi Golden weighed 19 pounds
compared to the average weight of a [sic] 38-40 pounds for a
17. At the time of death, Malachi Golden's skin exhibited
"tenting" a sign of acute
18.At the time of death, Malachi Golden had a very wasted
19. At the time of death, Malachi Golden's skin also
exhibited acute wrinkling 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
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
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
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
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
35. The caregivers ceased Malachi Golden's medication,
medical care and therapy sessions at, or near, December of
36.The caregivers ceased all medication, medical care, and
therapy sessions without consulting Malachi Golden's
37.For the last few months of his life, Malachi Golden was
cloistered from all adults except Tiffany Cheeks and
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
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
43. Malachi Golden was a "chubby" child before
44.In December of 20l4, Malachi Golden was hungry when he met
with the therapist at the school.
45. In January of 20l5, the home therapist working with
Malachi Golden's sibling commented to Ms. Tiffany Cheeks
that the [sic] Malachi Golden appeared thin.
46. Ms. Tiffany Cheeks told the therapist that the doctor was
taking care of it, when in fact Malachi had not seen a doctor
for a long time.
47.Ms. Tiffany Cheeks canceled the sibling's appointments
with the therapist shortly after the above conversation
during the January 2015 visit.
48. The caregivers had transportation to get Malachi Golden
to a doctor's office.
49.Both Defendant and Ms. Tiffany Cheeks recanted their
interviews with the police where they admitted wrongdoing
regarding the care of Malachi Golden.
50. Defendant contradicted himself several times on the stand
during his ...