              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                      No. COA17-962

                                Filed: 20 February 2018

Cleveland County, No. 14 CRS 50597

STATE OF NORTH CAROLINA

             v.

JONATHAN EUGENE DIXON


      Appeal by defendant from judgment entered 23 March 2017 by Judge Robert

C. Ervin in Cleveland County Superior Court. Heard in the Court of Appeals 22

January 2018.


      Attorney General Joshua H. Stein, by Assistant Attorney General M. Elizabeth
      Guzman, for the State.

      Anne Bleyman for defendant-appellant.


      TYSON, Judge.


      Jonathan Eugene Dixon (“Defendant”) appeals from judgment entered upon a

jury’s conviction of child abuse intentionally inflicting serious bodily injury. The

State presented insufficient evidence of Defendant’s intentional infliction of serious

bodily injury. We reverse and remand for re-sentencing on intentional child abuse

inflicting serious physical injury.

                                      I. Background
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                                   Opinion of the Court



         Defendant was indicted on one count of felony child abuse intentionally

inflicting serious bodily injury on 10 February 2014. At trial, the State’s evidence

tended to show: Defendant lived in a house in Shelby, North Carolina, with his two

daughters, ages four and six, his girlfriend Lee Webb, and her son and daughter.

Lee’s sister, Jennifer Webb, was also staying in the house.

         On 25 January 2014, the adults awoke after Defendant’s oldest daughter, CW,

had cut her little sister’s hair. Defendant and Lee began to argue. Lee and Jennifer

left the house with Lee’s daughter, and went to a friend’s home. Lee, Jennifer, and

their friend went out around lunchtime. Prior to their return, Defendant rode his

bicycle over to the friend’s house, and stated he had fallen on CW and she was hurt.

         CW was transported to the emergency room at Cleveland Regional Hospital by

ambulance just before 3:00 a.m. on 26 January 2014. Her leg had been stabilized in

traction by EMS personnel. Defendant told one of the hospital’s admitting nurses

that he was trying to put CW back to bed about 2:30 a.m., but she was fighting him.

Defendant stated CW kicked him, he tripped and fell on her, and he heard her leg

“pop.”

         The nurses noted CW’s upper leg was misshaped, CW was very upset, crying,

and clearly in pain, which increased with movement of the injured leg. The nurses

also noted bruising around CW’s nose, on her forehead and abdomen, and scrapes on

her face.



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      CW first stated she had run into a wall. She then she told the nurses she had

woken up hungry because she had not eaten any food the day before. Defendant tried

to put her back to bed, but she kicked him and he “pushed her legs together until her

leg popped.”

      Shelby Police Officer Josh Hendrick went to Cleveland Regional Hospital at

2:54 a.m. on 26 January 2014 to investigate the circumstances of CW’s broken leg.

Defendant stated he fell on top of CW and heard her leg pop. When questioned about

CW’s bruises, Defendant stated her head had wedged between the headboard and the

mattress during the struggle.

      CW was transferred to Levine Children’s Hospital (“Levine”). Dr. Bryant Allen

was working that evening, and testified CW presented with a femur fracture in

traction, and her pain was being managed by morphine.            CW’s medical chart

indicated Defendant told doctors that during the struggle with CW, she had hit her

head, he fell “backwards and forwards onto her leg,” and he “felt a pop and looked

down at her leg and it looked funny.” CW had surgery on the same day she was

admitted to Levine, to properly set the fracture and place titanium rods on either side

of the bone to assist with proper healing. The titanium rods were removed once the

bone had healed sufficiently, between June and September 2014.

      Dr. Allen described a femur fracture as an “incredibly painful experience” that

requires “significant doses of pain medication and appropriate traction” to control the



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                                  Opinion of the Court



pain. Dr. Allen was concerned the injury was not accidental, as a great deal of force

is required to break the femur. He testified that an accidental fall onto a child “is

typically not enough force” to break the bone.

      Dr. Mark Mancuso, a pediatric radiologist at Levine, reviewed CW’s x-rays,

which were taken at her admission and over the course of her treatment.             He

described CW’s fracture as a spiral fracture, which was unusual in a child of CW’s

age. He stated that most fractures of this type require a great deal of force and occur

when a leg has been forcibly twisted. Dr. Mancuso testified it took between five to

eight months for CW’s leg to fully heal.

      Dr. Toni Tildon was CW’s attending physician at Levine. Defendant told Dr.

Tildon he had fallen on CW as he was pulling her out from under the headboard by

her legs. CW also told Dr. Tildon that Defendant had fallen on her. Dr. Tildon

testified femur fractures are incredibly painful, and the pain would continue as the

bone healed for several weeks or months. Dr. Tildon testified CW would not suffer

any permanent bone distortion, but would probably have life-long scars from her

surgery.

      CW wore a cast on her leg for two or three weeks, and required the use of a

wheelchair and a walker in the early stages of her recovery. CW did not return to

kindergarten that year, and repeated that grade the next year. By September 2014,

the rods had been removed and CW was cleared to engage in normal activities.



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                                  Opinion of the Court



      At trial, three years after the incident occurred, CW testified she had kicked

Defendant in the stomach, and he had pulled on her leg with one hand. CW stated

she heard and felt her leg “pop” and then her leg hurt “a lot.” At the time of trial,

CW’s scars had healed and she was engaging in unrestricted activities, such as

playing basketball and soccer, and jumping on the trampoline.

      The defense presented no evidence. The trial court instructed the jury on both

child abuse intentionally inflicting serious bodily injury under N.C. Gen. Stat. § 14-

318.4(a3) and child abuse intentionally inflicting serious physical injury under N.C.

Gen. Stat. § 14-318.4(a).

      On 23 March 2017, the jury returned a verdict and found Defendant guilty of

child abuse intentionally inflicting serious bodily injury. The trial court entered

judgment and sentenced Defendant to an active prison term of 125 to 162 months.

Defendant entered notice of appeal in open court.

                                   II. Jurisdiction

      Jurisdiction lies with this court pursuant to N.C. Gen. Stat. §§ 7A-27(b) and

15A-1444(a) (2017).

                                      III. Issue

      Defendant’s sole issue on appeal is whether the trial court erred in denying his

motion to dismiss. Defendant argues the State presented insufficient evidence to




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                                   Opinion of the Court



submit the charge of child abuse intentionally inflicting serious bodily injury to the

jury.

                               IV. Serious Bodily Injury

                                A. Standard of Review

        This Court reviews the denial of a motion to dismiss de novo. State v. Smith,

186 N.C. App. 57, 62, 650 S.E.2d 29, 33 (2007). The State must present sufficient and

substantial evidence of each essential element of the offense and that the defendant

was the perpetrator of the offense. State v. Wilkins, 208 N.C. App. 729, 731, 703

S.E.2d 807, 809 (2010).      “Substantial evidence is such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion.” Id. (citation and

quotation marks omitted). When ruling upon Defendant’s motion to dismiss: “[t]he

evidence must be viewed in the light most favorable to the State.” State v. Wilson,

181 N.C. App. 540, 542, 640 S.E.2d 403, 405 (2007) (citation omitted).

                  B. Serious Bodily Injury v. Serious Physical Injury

        North Carolina classifies several offenses as felony child abuse under N.C.

Gen. Stat. § 14-318.4 (2017). Subsection (a) provides that

              [a] parent . . . 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 D felony, except as otherwise
              provided in subsection (a3) of this section.




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                                     Opinion of the Court



N.C. Gen. Stat. § 14-318.4(a). “Serious physical injury” is defined in the statute as

“[p]hysical injury that causes great pain and suffering.” N.C. Gen. Stat. § 14-

318.4(d)(2).

      Defendant was charged under subsection (a3):

               [a] parent . . . 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 . . . is
               guilty of a Class B2 felony.

N.C. Gen. Stat. § 14-318.4(a3). The statute defines “serious bodily injury” as “[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).

      Defendant had no prior convictions or record points. As a prior record level I,

a class B2 felony has a presumptive sentencing range of 125 to 157 months, and

Defendant was sentenced without aggravating or mitigating factors to 125 to 162

months. A Class D felony carries a presumptive sentencing range of 51 to 64 months,

for an offender with no prior record.

      This differentiation and escalation of prison terms of the offenses is observed

from the evolution of section 14-318.4. Prior to 1999, the statute did not include



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                                   Opinion of the Court



subsection (a3), and parents who “intentionally inflict[ed] any serious physical injury

upon or to the child or who intentionally commit[ted] an assault upon the child which

result[ed] in any serious physical injury to the child [were] guilty of a Class E felony.”

N.C. Gen. Stat. § 14-318.4(a) (1993) (emphasis supplied).

      In 1999, the North Carolina General Assembly proposed in House Bill 160 to

increase the penalty for more egregious instances of child abuse. 1999 N.C. Sess.

Laws 451. The first version of the bill mandated a harsher penalty if the injury to

the child was permanent. H.B. 160, Edition 1, Reg. Sess. (N.C. 2017) (“If a person

commits an offense under subsection (a) of this section, and the serious physical

injury is a permanent and debilitating injury, then the person is guilty of a Class C

felony.”). The final version contained the language codified in the current statute and

punishes this offense as “a Class B2 felony.” See N.C. Gen. Stat. § 14-318.4(a3), (d)(1)

(2017).

      The case law since 1999 has attempted to differentiate between felony child

abuse that results in “serious physical injury” and “serious bodily injury.” In cases

where the charge for child abuse inflicting “serious bodily injury” was upheld, the

children tend to be very young, and present with injuries that would appear to be life-

threatening, prolonged, or permanent. See, e.g., State v. Chapman, 154 N.C. App. 441,

572 S.E.2d 243 (2002) (two-year-old child, presented with blunt abdominal trauma

which led to severe, life-threatening toxic shock due to perforated intestines); State



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                                   Opinion of the Court



v. Wilson, 181 N.C. App. 540, 640 S.E.2d 403 (2007) (two-year-old child, presented

with extensive burns along backside and a blood clot in the brain, which could result

in life-long medical issues); State v. Parker, 185 N.C. App. 437, 651 S.E.2d 377 (2007)

(one-month-old child, presented with severe brain damage and extensive fractures,

and who remained in a vegetative state at time of trial); State v. Mosher, 235 N.C.

App. 513, 761 S.E.2d 204 (2014) (two-year-old child, presented with burns over 44%

of her body, which required hospitalization for two months).

      In contrast, the cases where a defendant was charged with felony child abuse

inflicting “serious physical injury” tend to involve older children, with less permanent

or life-threatening injuries. See, e.g., State v. Williams, 154 N.C. App. 176, 571 S.E.2d

619 (2002) (eight-year-old child, struck on buttocks with a board, which resulted in a

large bruise and open wound and required twelve to fourteen days to recover); State

v. Lowe, 154 N.C. App. 607, 572 S.E.2d 850 (2002) (nine-year-old child, struck on the

head with a pool stick); State v. Williams, 184 N.C. App. 351, 646 S.E.2d 613 (2007)

(nine-year-old child, beaten with a belt for extended period of time, which resulted in

extensive bruising, swelling, and pain for over a week).

      This Court’s analysis in State v. Bohannon, __ N.C. App. __, 786 S.E.2d 781

(2016), further illuminates the distinction between child abuse inflicting or resulting

in “serious physical injury” and “serious bodily injury.” The three-month-old child

was brought to the emergency room and presented with significant bruising from his



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                                   Opinion of the Court



face to his chest. Id. at __, 786 S.E.2d at 784. Diagnostic scans revealed the child had

“buckle fractures” to both of his tibias, which, according to expert medical testimony,

are often caused by significant twisting of the bones. Id. The scans also revealed

hemorrhaging in the brain. Id. The child was admitted to the hospital for orthopedic

surgery and general observation, and remained hospitalized for two days. Id.

      The defendant in Bohannon was initially charged and indicted with three

counts of felony child abuse inflicting “serious physical injury” for the bruising,

fractured legs, and the brain hematoma. The State subsequently charged him with

felony child abuse inflicting “serious bodily injury” for the resulting brain

hemorrhaging. Id. at __, 786 S.E.2d at 785. The jury returned verdicts finding the

defendant guilty of two counts of felony child abuse inflicting serious physical injury,

for the broken tibias and the bruising, and one count of felony child abuse inflicting

serious bodily injury for the brain hemorrhage. Id.

      The defendant appealed the trial court’s denial of his motion to dismiss the

charge of serious bodily injury for insufficient evidence. Id. The defendant argued

that since the child did not suffer acute consequences as a result of the brain

hemorrhage, the “brain injury never presented a substantial risk of death.” Id. at __,

786 S.E.2d at 786. This Court recognized no case law defines “serious bodily injury”

or “substantial risk of death” in the cases involving felony child abuse, but found “the

age and particular vulnerability of a minor victim must factor into this analysis.” Id.



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                                   Opinion of the Court



      Although the child did not have immediate life-threatening consequences upon

his admission to the hospital, he would have to be monitored for dangerous side

effects from the brain hemorrhage that may appear down the road. Id. at __. 786

S.E.2d at 787.    Because the bleeding in the brain had the potential to be life-

threatening, based on uncontroverted expert medical testimony, and that risk of

death was created when the child suffered the brain injury, this Court held there was

sufficient evidence of serious bodily injury to send the charge to the jury. Id.

      These comparative case interpretations of the statute show the legislative

intent for adding subsection (a3) as “a Class B2 felony” was to substantially increase

punishment for the more egregious instances of child abuse. All child abuse is

abhorrent. However, the history and intent of the statute as amended shows the

charge of intentionally inflicting “serious bodily injury” is reserved for those more

egregious cases where a child suffers “permanent or protracted” injuries or is placed

at “substantial risk of death.” N.C. Gen. Stat. § 14-318.4(d)(1).

                            C. Sufficiency of the Evidence

      The State argues sufficient evidence was presented of Defendant intentionally

inflicting serious bodily injury on CW to justify submitting that charge to the jury.

The State asserts the evidence shows CW suffered disfigurement, extreme pain, and

loss of the use of a limb for a protracted period of time. The State argues the cases of

State v. Downs and State v. Williams support its assertion that CW suffered



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                                   Opinion of the Court



disfigurement due to the scars that remain from the surgery to place and remove the

titanium rods in her leg.

       In State v. Downs, this Court determined the permanent loss of a tooth in an

assault qualified as “permanent disfigurement” to support sending a charge of serious

bodily injury to the jury. 179 N.C. App. 860, 861-62, 635 S.E.2d 518, 520 (2006). In

State v. Williams, this Court found a scar over the victim’s eye that resulted from an

assault   and    subsequent     lingering      infection   “amount[ed]   to   permanent

disfigurement.” 201 N.C. App. 161, 169, 689 S.E.2d 412, 416 (2009).

       This Court has more recently held that “the presence of a minor scar or other

mild disfigurement alone cannot be sufficient to support a finding of serious bodily

injury.” State v. Williams, __ N.C. App. __, __, 804 S.E.2d 570, 579 (2017) (citation

and internal quotation marks omitted). We reject the State’s assertion that the

presence of a scar is a bright-line indication to support a charge of serious bodily

injury. Id.

       In this case, CW’s scars result from surgery. By the time of trial, CW’s surgical

scars had healed and she was engaged in unrestricted physical activities.           The

appearance of faded surgical scars on the leg should tend to be less disfiguring than

a scar resulting from blunt impact to the face and compounded by a lingering

infection. See Williams, 201 N.C. App. at 169, 689 S.E.2d at 416.




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                                    Opinion of the Court



      CW testified her scars were already fading.          Further, the State’s expert

physician testified there should be no permanent disfiguration, or any loss or

impairment of function of the leg due to the scars. Under these facts, the scars on

CW’s leg are not sufficient evidence of permanent disfigurement to elevate

Defendant’s child abuse to intentionally inflicting serious bodily injury. See Williams,

__ N.C. App. at __, 804 S.E.2d at 579.

      The State also asserts CW suffered extreme pain and loss of use of her leg for

a period of time, which supports sending the charge of serious bodily injury to the

jury. However, the State offers no support for these assertions. As stated in the

statute, to be considered “serious bodily injury,” it is not enough for the victim to

suffer extreme pain, but rather “a permanent or protracted condition that causes

extreme pain.” N.C. Gen. Stat. § 14-318.4(d)(1).

      Child abuse inflicting “serious physical injury” is “[p]hysical injury that causes

great pain and suffering.” N.C. Gen. Stat. § 14-318.4(d)(2). CW testified her leg had

stopped hurting long before trial. CW was cleared to engage in normal activities

within nine months of her injury.

      Unlike in Bohannon, where the injury created “a substantial risk of death,” the

injuries to CW did not cause “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 result “in prolonged



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                                   Opinion of the Court



hospitalization.” N.C. Gen. Stat. § 14-318.4 (d)(1); see Bohannon, __ N.C. App. at __,

786 S.E.2d at 781. As no testimony or other evidence was presented that CW was

ever at risk of death due to her injury, the outcome of her injury is determinative of

whether she suffered a “serious bodily injury.”

      Relying upon the established precedents of felony child abuse in the cases

above, the State presented insufficient evidence to submit the charge of felony child

abuse inflicting serious bodily injury to the jury. However, the evidence submitted in

the light most favorable to the State was sufficient to submit and support a conviction

of intentional child abuse resulting in serious physical injury.

                                    V. Conclusion

      Defendant does not dispute he inflicted physical injury upon his child. He does

not argue the injury was unintentional. He disputes the severity of the injury to

support a conviction for felony child abuse intentionally inflicting serious bodily

injury. Other than as discussed above, this Court has refused to create a bright-line

differentiation between “serious physical injury” and “serious bodily injury” as it

pertains to felony child abuse and instead it reviews cases on a fact-specific basis.

      Comparing the facts of this case to others sustaining felony child abuse

intentionally inflicting serious bodily injury, the evidence presented does not sustain

the heightened charge. The State did not present sufficient evidence to overcome




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                                   Opinion of the Court



Defendant’s motion to dismiss.         Defendant’s sentence of felony child abuse

intentionally inflicting serious bodily injury is reversed.

      The State presented sufficient evidence to support a conviction of felony child

abuse inflicting serious physical injury. We remand this matter to the trial court for

re-sentencing on the lesser offense of felony child abuse inflicting serious physical

injury. It is so ordered.

      REVERSED AND REMANDED FOR RE-SENTENCING.

      Chief Judge McGEE and Judge DAVIS concur.




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