               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA15-389

                                 Filed: 7 June 2016

Forsyth County, Nos. 12 CRS 60962, 13 CRS 4697

STATE OF NORTH CAROLINA

              v.

CHALMERS GRAY BOHANNON, JR.


        Appeal by defendant from judgment entered 27 March 2014 by Judge Edwin

G. Wilson in Forsyth County Superior Court. Heard in the Court of Appeals 6 October

2015.


        Attorney General Roy Cooper, by Assistant Attorney General Jennie Wilhelm
        Hauser, for the State.

        Appellate Defender Staples Hughes, by Assistant Appellate Defender, John F.
        Carella, for defendant.


        CALABRIA, Judge.


        Chalmers Bohannon (”defendant”) appeals from a judgment entered upon a

jury verdict finding him guilty of felony child abuse inflicting serious bodily injury.

For the reasons that follow, we find no error.
                                        STATE V. BOHANNON

                                         Opinion of the Court




                                          I. Background

        The State presented evidence that on the evening minor victim A.B.1 sustained

injuries, he was approximately three months old and he lived with his mother,

Brittany Fulp (“Fulp”), and his father, defendant, in a small apartment located in

Winston-Salem. During the early evening hours of 7 September 2012, Fulp placed

A.B. in his crib and he went to sleep. Since A.B. was asleep and defendant was home,

Fulp walked to a nearby drugstore.                  When Fulp returned to the apartment

approximately thirty to forty-five minutes later, A.B. was propped up on defendant

and Fulp’s bed; he was whimpering but was unable to cry. A.B.’s face and chest were

bruised, and his eye was swollen. When Fulp asked defendant what happened, he

responded that he was not sure. After settling A.B., Fulp laid him down for the night

and planned to seek medical assistance if he appeared worse the next day. A.B. slept

through the night for the first time in his life. Although Fulp checked on A.B. the

following morning, she could not properly assess his condition due to the dim lighting

around his crib.         Sometime during the evening hours of 8 September 2012,

defendant’s mother, defendant, and Fulp transported A.B. to the hospital to have his

injuries evaluated.




        1 The minor victim’s initials will be used to protect his identity in conformity with N.C. R.App.
P. 3.1(b) and 4.

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                                   Opinion of the Court



      In the pediatric emergency department, A.B. was first assessed by a triage

nurse. He was then further examined by Dr. David Klein, an emergency medicine

specialist, and Dr. Coker, the chief resident at the hospital. Dr. Klein observed

bruising in the following areas: A.B.’s left forehead; the right side of his face going

towards the ear; the middle portion of the right side of his face; the upper left chest

going toward his shoulder; and the right side of his chest going toward his upper

abdomen. When the physicians asked defendant and Fulp what happened to A.B,

neither one provided an answer. After remaining in the emergency room for fifteen

minutes, defendant left the hospital and went home.

      While at the hospital, A.B. underwent a series of diagnostic tests which

included a CAT scan and an MRI of his head as well as x-rays of all his bones. Dr.

Lauren Golding was the attending pediatric radiologist on duty when A.B. was

brought to the hospital on 8 September. She discovered that A.B. had sustained a

broken right tibia (i.e., leg fracture). A.B.’s leg injury was thought to be the result of

a “buckle fracture,” an injury that occurs when a bone “buckles” after being subjected

to substantial force or pressure.      Buckle fractures in infants can result from

significant twisting or torqueing of the bone. Follow-up x-ray scans (on 25 September

2012) revealed that A.B. had also sustained a buckle fracture to his left tibia. A.B.’s

MRI revealed subarachnoid hemorrhaging consistent with the external bruising on

both sides of his brain. Subarachnoid hemorrhages refer to bleeding under the



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                                 Opinion of the Court



arachnoid, or innermost, layer of the brain.      At trial, Dr. Golding testified that

bleeding around the brain is a sign of significant trauma and can result in acute

illness or death depending on the volume of the bleeding and the increase in

intracranial pressure. A.B. was eventually admitted to the hospital for orthopedic

surgery, general observation, and physical protection. He was hospitalized for two

days.

        Since neither Fulp nor defendant could explain what happened to A.B.,

hospital staff reported suspected child abuse to Forsyth County’s Child Protective

Services (FCCPS) and local law enforcement. As a result, Winston-Salem Police

Officer Aaron Jessup (“Officer Jessup”) was dispatched to the hospital, where he

found medical staff with A.B. in his room. Officer Jessup then located Fulp in the

parking lot where it appeared she was trying to leave. Fulp told Officer Jessup she

was not in the room because she was frightened and concerned for defendant. She

also reported her version of events from the night of 7 September 2012.         After

continued questioning, Fulp informed the police officer that defendant was at their

apartment. In following up on the information Fulp provided, Officer Jessup went to

the family’s apartment and interviewed defendant, who stated that he was cooking

in the kitchen on the night of 7 September 2012 when A.B. fell off the couch and

landed face down on the carpeted floor.




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                                  STATE V. BOHANNON

                                   Opinion of the Court



      On 10 September 2012, Dr. Meggan Goodpasture, director of the hospital’s

Child Abuse and Neglect Team, conducted a complete physical exam on A.B. and

observed that he had “significant bruising” on his chest, both cheeks, and his face

extending from his left ear to his right ear. Upon A.B.’s release to FCCPS, hospital

staff recommended that social workers have A.B. examined by a neurosurgeon in two

to three weeks.

      On 25 February 2013, the State indicted defendant and charged him with three

counts of felony child abuse inflicting serious physical injury. Subsequently, the State

offered a plea arrangement pursuant to which defendant could “plead as indicted” or

face indictments on additional charges. After defendant rejected the plea offer, the

State obtained additional indictments charging him with felony child abuse inflicting

serious bodily injury and habitual felon status. The case proceeded to trial and, on

27 March 2014, a jury returned verdicts finding defendant guilty on two counts of

felony child abuse inflicting serious physical injury (a Class E felony) for A.B.’s broken

tibias and bruising, and one count of felony child abuse inflicting serious bodily injury

(a Class C felony) for A.B’s brain injury. The trial court sentenced defendant to 127

to 165 months’ imprisonment for the Class C felony and 44 to 65 months for each of

the Class E felonies. The three sentences were ordered to run consecutively in the

North Carolina Department of Public Safety, Division of Adult Correction. Defendant

appeals.



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                                 STATE V. BOHANNON

                                   Opinion of the Court




                                     II. Analysis

      A. Motion to Dismiss

      Defendant first asserts that the trial court erred by denying his motion to

dismiss because the State presented insufficient evidence of a serious bodily injury

as required by N.C. Gen. Stat. § 14-318.4(a3). We disagree.

      We review a trial court’s denial of a motion to dismiss de novo. State v. Smith,

186 N.C. App. 57, 62, 650 S.E.2d 29, 33 (2007).           “Upon defendant’s motion for

dismissal, the question for the [c]ourt is whether there is substantial evidence (1) of

each essential element of the offense charged, or of a lesser offense included therein,

and (2) of defendant’s being the perpetrator of such offense. If so, the motion is

properly denied.” State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451, 455 (2000), cert.

denied, 531 U.S. 890, 148 L. Ed. 2d 150 (2000). “Substantial evidence is such relevant

evidence as a reasonable mind might accept as adequate to support a conclusion.”

Smith, 186 N.C. App. at 62, 650 S.E.2d at 33 (citation omitted). “In making its

determination, the trial court must consider all evidence admitted, whether

competent or incompetent, in the light most favorable to the State, giving the State



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                                        Opinion of the Court



the benefit of every reasonable inference and resolving any contradictions in its

favor.” State v. Rose, 339 N.C. 172, 192, 451 S.E.2d 211, 223 (1994), cert. denied, 515

U.S. 1135, 132 L. Ed. 2d 818 (1995). Contradictions and discrepancies in the evidence

“are for the jury to resolve.” State v. Barnes, 334 N.C. 67, 75, 430 S.E.2d 914, 918

(1993).

       Felonious child abuse inflicting serious bodily injury is defined by subsection

14-318.4(a3), which provides that

               [a] parent or any other person providing care to or
               supervision of a child less than 16 years of age who
               intentionally inflicts any serious bodily injury to the child
               or who intentionally commits an assault upon the child
               which results in any serious bodily injury to the child, or
               which results in permanent or protracted loss or
               impairment of any mental or emotional function of the
               child, is guilty of a Class C2 felony.

N.C. Gen. Stat. § 14-318.4(a3) (2012). A “serious bodily injury” is a “[b]odily injury

that creates a substantial risk of death or that causes serious permanent

disfigurement, coma, a permanent or protracted condition that causes extreme pain,

or permanent or protracted loss or impairment of the function of any bodily member

or organ, or that results in prolonged hospitalization.”                 N.C. Gen. Stat. § 14-

318.4(d)(1).




       2 2013 N.C. Sess. Law 35, section 1, effective 1 December 2013, upgraded a violation of N.C.
Gen. Stat. § 14-318.4(a3) from a Class C felony to a Class B2 felony. Defendant was properly indicted
and convicted under the statute as it existed at the time of A.B.’s injuries.

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                                     STATE V. BOHANNON

                                       Opinion of the Court



       The separate, lesser offense of felonious child abuse inflicting serious physical

injury is defined under N.C. Gen. Stat. § 14-318.4(a), which states:

               A parent or any other person providing care to or
               supervision of a child less than 16 years of age who
               intentionally inflicts any serious physical injury upon or to
               the child or who intentionally commits an assault upon the
               child which results in any serious physical injury to the
               child is guilty of a Class E3 felony, except as otherwise
               provided in subsection (a3) of this section.

N.C. Gen. Stat. § 14-318.4(a) (2012). A “serious physical injury” is defined as a

“[p]hysical injury that causes great pain and suffering. The term includes serious

mental injury.” N.C. Gen. Stat. § 14-318.4(d)(2).

       In order to prove felonious child abuse inflicting serious bodily injury, the State

must prove that: “(1) the defendant was the parent of the child; (2) the child had not

reached [sixteen years of age]; and (3) the defendant intentionally and without

justification or excuse inflicted serious bodily injury.” State v. Wilson, 181 N.C. App.

540, 543, 640 S.E.2d 403, 405-06 (2007). “[W]hen an adult has exclusive custody of a

child for a period of time during which the child suffers injuries that are neither self-

inflicted nor accidental, there is sufficient evidence to create an inference that the

adult intentionally inflicted those injuries.” State v. Liberato, 156 N.C. App. 182, 186,

576 S.E.2d 118, 120-21 (2003).




       3 2013 N.C. Sess. Law 35, section 1, effective 1 December 2013, upgraded a violation of N.C.
Gen. Stat. § 14-318.4(a) from a Class E felony to a Class D felony.

                                               -8-
                                 STATE V. BOHANNON

                                   Opinion of the Court



      In the instant case, it is undisputed that defendant is A.B.’s father and that

A.B. is less than sixteen years of age. Defendant had exclusive custody over A.B. at

the time that A.B. was injured, and defendant does not challenge that he

intentionally caused those injuries. Therefore, the only remaining issue is whether

A.B.’s subarachnoid hemorrhaging constitutes a “serious bodily injury” under N.C.

Gen. Stat. § 14-318.4(d)(1).

      This Court has previously noted that “the definition of ‘serious bodily injury’

in this statute mirrors the definition of the same in [N.C. Gen. Stat.] § 14-32.4[,]” our

assault inflicting serious bodily injury statute. State v. Lowe, 154 N.C. App. 607, 615,

572 S.E.2d 850, 856 (2002). In the context of our assault statute, the term “requires

proof of more severe injury than the ‘serious injury’ element of [assault with a deadly

weapon with intent to kill or inflicting serious injury].”      Id.   However, neither

subdivision 14-318.4(d)(1) nor case law further define the term in the context of

felonious child abuse, nor do they explain what constitutes a “substantial risk of

death.” See N.C. Gen. Stat. § 14-318.4(d)(1). Even so, it is clear that subsection 14-

318.4(a3) is violated whenever a parent or caretaker inflicts a bodily injury on a minor

that “creates” such a risk. See id. As a result, the age and particular vulnerability of

a minor victim must factor into this analysis.

      Defendant argues “the State failed to present evidence that the bleeding

[around A.B.’s brain] created ‘a substantial risk of death’ or caused ‘serious



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                                   Opinion of the Court



permanent disfigurement, a permanent or protracted condition that causes extreme

pain, or permanent or protracted loss or impairment of the function of any bodily

member or organ,’ or resulted in ‘prolonged hospitalization.’ ” According to defendant,

since A.B. did not actually suffer acute consequences from his subarachnoid

hemorrhages, his brain injury never presented a substantial risk of death. In making

this argument, defendant portrays A.B.’s hospitalization as one based on “protection,”

not “treatment,” and he notes that A.B. was released only “with a prescription for

Tylenol, if needed.” Based on this characterization of the evidence, defendant asks

us to remand for entry of judgment on the lesser offense of felony child abuse inflicting

serious physical injury.

      In response, the State contends that this Court’s holding in State v. Wilson,

181 N.C. App. 540, 640 S.E.2d 403 (2007) should control our analysis in this case.

Wilson is distinguishable, however, because the defendant in that case challenged the

sufficiency of the evidence proving “that [she] intentionally abused her child[,]” rather

than the evidence offered to prove a serious bodily injury. Id. at 542, 640 S.E.2d at

405. Furthermore, the Wilson defendant was convicted of a single count of felonious

child abuse inflicting serious bodily injury for a series of injuries including first and

second degree burns caused by scalding water and cigarette butts; “chronic signs of

neglect”; and a blood clot appearing on the right side of the child’s brain. Id. at 541,

640 S.E.2d at 401. By contrast, in the instant case, defendant was convicted of three



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                                   Opinion of the Court



counts of felonious child abuse—two inflicting serious physical injury (for the

fractured tibia and bruises appearing on A.B.’s face, ear, and chest), and one inflicting

serious bodily injury (for the subarachnoid hemorrhages). Consequently, the “serious

bodily injury” in Wilson was actually a series of injuries that included a subdural

hematoma, rather than the brain injury alone.

      Although Wilson does not control our analysis in this case, we nevertheless

hold that there was sufficient evidence to submit to the jury the question of whether

A.B. suffered a serious bodily injury.      Our examination of the record evidence,

considered in the light most favorable to the State, shows that A.B. was a normal,

healthy baby who had no prior medical problems. Dr. Klein, the attending physician

in the hospital’s pediatric emergency department on 8 September 2012, testified

about his examination of A.B. He stated that a CAT scan revealed an abnormality in

A.B.’s skull, but the radiologist could not determine at that time whether “that was a

separation due to a break [in the skull] or a separation due to a slow closing of those

bones” forming the area commonly referred to as the “soft spot” on a baby’s head.

After A.B. was admitted to the hospital, Dr. Golding examined A.B.’s MRI, which

revealed multiple areas of hemorrhaging on his brain. Dr. Golding testified that

bleeding on the brain could lead to a number of issues, including “developmental

delays” or even “acute illness and death” when there is significant volume and

increasing intracranial pressure. Similarly, Dr. Goodpasture testified that bleeding



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                                   Opinion of the Court



around the brain is “certainly a sign of serious trauma” that, in infants, can cause

“irritability, seizures, and . . . even . . . life-threatening events[.]” Although the

subarachnoid hemorrhaging did not appear to be immediately life-threatening when

A.B. was evaluated at the hospital, Dr. Goodpasture stated that it is very difficult to

predict the full effect of brain injuries in infants because “an infant’s brain at this

time is growing and developing a tremendous amount, and . . . injury to their brain

at this age could be more traumatic or damaging than to [an adult’s].” She further

testified that A.B.’s brain injury would require him to be continuously monitored for

dangerous side effects down the road. Defendant did not offer any evidence.

      When viewed in the light most favorable to the State, the evidence was

sufficient to withstand defendant’s motion to dismiss. More specifically, based on the

facts of this case, we believe the record demonstrates that A.B.’s brain injury created

a substantial risk of his death. The evidence suggests that defendant intentionally

inflicted serious trauma to the head of A.B., thereby causing subarachnoid

hemorrhaging. Indeed, the force was so strong as to crack A.B.’s skull, or at the very

least, cause bleeding in the brain of an infant so young that his “soft spot” had not yet

closed. This significant, internal bleeding clearly had the potential to kill A.B. and

that risk was created when the brain injury was inflicted. The dangers inherent in

such a situation—one where some action or mechanism delivered multiple, vicious

blows to a three-month-old baby’s skull—could be inferred by the fact finder as a



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                                 STATE V. BOHANNON

                                  Opinion of the Court



matter of common knowledge. Given the uncontroverted testimony of three expert

witnesses who personally treated A.B., we conclude that there was sufficient evidence

from which a reasonable jury could find that A.B.’s brain injury constituted a “serious

bodily injury” in accordance with N.C. Gen. Stat. § 14-318.4(a3). Thus, the trial court

did not err in denying defendant’s motion to dismiss due to insufficiency of the

evidence.

      B. The State’s Closing Argument

      Defendant next argues that the trial court erred in failing to intervene ex mero

motu during the State’s closing argument. We disagree.

      Initially, we note that defendant did not object to the State’s closing at trial.

              The standard of review for assessing alleged improper
              closing arguments that fail to provoke timely objection
              from opposing counsel is whether the remarks were so
              grossly improper that the trial court committed reversible
              error by failing to intervene ex mero motu. Under this
              standard, only an extreme impropriety on the part of the
              prosecutor will compel this Court to hold that the trial
              judge abused his discretion in not recognizing and
              correcting ex mero motu an argument that defense counsel
              apparently did not believe was prejudicial when originally
              spoken. Defendant must show that the prosecutor’s
              comments so infected the trial with unfairness that they
              rendered the conviction fundamentally unfair.

State v. Jones, 231 N.C. App. 433, 437, 752 S.E.2d 212, 215 (2013) (internal citations,

quotation marks, and brackets omitted), disc. review denied, 367 N.C. 322, 755 S.E.2d

616 (2014).



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                                 STATE V. BOHANNON

                                  Opinion of the Court



      It is well established that “[s]tatements made during closing arguments to the

jury are to be viewed in the context in which the remarks are made and the overall

factual circumstances to which they make reference.” State v. Harris, __ N.C. App.

__, __, 763 S.E.2d 302, 311 (2014) (citation omitted). “As a general proposition,

counsel are allowed wide latitude in closing arguments, so that a prosecutor is

entitled to argue all reasonable inferences drawn from the facts contained in the

record.” Id. (citations omitted). “Unless the defendant objects, the trial court is not

required to interfere ex mero motu unless the arguments stray so far from the bounds

of propriety as to impede the defendant’s right to a fair trial.” State v. Small, 328

N.C. 175, 185, 400 S.E.2d 413, 418 (1991) (quotation marks and citations omitted).

Nor is the trial court required “to intervene ex mero motu where a prosecutor makes

comments during closing argument which are substantially correct shorthand

summaries of the law, even if slightly slanted toward the State’s perspective.” State

v. Barden, 356 N.C. 316, 366, 572 S.E.2d 108, 140 (2002) (citation omitted). Moreover,

a prosecutor’s misstatement of the law may be cured by the trial court’s subsequent

correct instructions. Id.

      Here, defendant challenges the following statement made by the prosecutor

during her closing argument:

             And I contend you’ve heard evidence from Dr. [Klein], Dr.
             Golding, and Dr. Goodpasture about the concerns about
             infants having subarachnoid hematoma [sic] or bleeding in
             the subarachnoid space; that infants are particularly


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                                 STATE V. BOHANNON

                                  Opinion of the Court



             vulnerable when they’re this age, and that that kind of
             bleeding can lead to death, developmental delays, you
             know, brain disfigurement, a number of things; so much so
             that they have to monitor infants for a significant period of
             time to make sure that they develop normally and that they
             meet their milestones. And so what’s required in that is a
             substantial risk. The State is not required to prove that
             [A.B.] actually suffered death or disfigurement or
             whatever. But I would contend to you that if you have a
             bleed in your brain, which is the organ that controls all
             your bodily functions, that that bleeding can lead to
             swelling, which cuts off oxygen, which could lead to death,
             which could lead to impairment, which could lead to delays,
             all kinds of significant problems down the road.

      Defendant argues that this statement “misrepresented the State’s burden of

proof and asked the jury to find that [A.B.] suffered a ‘serious bodily injury’ if it

concluded that there was some possibility of future impairment or disfigurement.”

Further, defendant argues that the trial court’s failure to intervene and correct the

State’s misrepresentations deprived defendant of his right to a fair trial.

      During closing argument, the prosecutor stated that she must prove

“substantial risk” that “could lead” to prolonged or permanent injuries. The jury

charge, however, clarified the law and the State’s burden of proof:

             The defendant has been charged with Felonious Child
             Abuse Inflicting Serious Bodily Injury. For you to find the
             defendant guilty of this offense, the State must prove three
             things beyond a reasonable doubt: . . . And third, that the
             defendant intentionally inflicted a serious bodily injury to
             the child or intentionally assaulted the child which
             proximately resulted in serious bodily injury to the child.

             A serious bodily injury is defined as a bodily injury that
             creates a substantial risk of death or that causes serious

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                                 STATE V. BOHANNON

                                   Opinion of the Court



             permanent disfigurement, a permanent or protracted
             condition that causes extreme pain, or permanent or
             protracted loss or impairment of the function of any bodily
             member or organ or that results in prolonged
             hospitalization.

Both the State and defendant approved the jury charge before it was delivered.

Moreover, following a question from the jury, the judge clarified the definitions of

“serious bodily injury” and “serious physical injury” under the statute. This request

for clarification manifested the jury’s understanding that the State’s burden of proof

for the charge stemming from A.B.’s head injury was different than those related to

his bruises and broken tibias. Given the opportunity to convict defendant of the lesser

charge of felonious child abuse inflicting serious physical injury, the jury nevertheless

determined that A.B.’s subarachnoid hemorrhaging constituted a “serious bodily

injury.”

      In light of the “overall factual circumstances” of this case, Harris, __ N.C. App.

at __, 763 S.E.2d at 311, we conclude that the prosecutor’s closing arguments were

not “so grossly improper” as to “infect[] the trial with unfairness” and “render[] the

conviction fundamentally unfair.” Jones, 231 N.C. App. at 437, 752 S.E.2d at 215.

Therefore, the trial court did not err by failing to intervene ex mero motu to address

the prosecutor’s allegedly improper closing remarks.

                                   III. Conclusion

      Based on the foregoing analysis, we hold that the trial court did not err in

denying defendant’s motion to dismiss for insufficient evidence the charge of felonious

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                                   Opinion of the Court



child abuse inflicting serious bodily injury. Additionally, we hold that the trial court

did not err in failing to intervene ex mero motu during the prosecutor’s closing

argument.

      NO ERROR.

      Judges BRYANT and ZACHARY concur.




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