State v. Sellers

776 S.E.2d 898 (Table)

STATE of North Carolina

v.David SELLERS, Defendant.

No. COA15–10.

Court of Appeals of North Carolina.

Aug. 4, 2015.

Attorney General Roy Cooper, by Special Deputy Attorney General Phillip K. Woods, for the State.

Cheshire Parker Schneider & Bryan, PLLC, by John Keating Wiles, for defendant.

ELMORE, Judge.

On 11 July 2014, a jury found defendant guilty of negligent child abuse resulting in serious bodily injury and on 14 July 2014, defendant entered a guilty plea to the crime of being a habitual felon. The trial court consolidated both convictions into one judgment and sentenced defendant to 95–126 months of active imprisonment. After careful consideration, we hold that defendant received a trial free from prejudicial error.

I. Background

The State's evidence at trial tended to show the following: On 18 December 2011, defendant fathered a daughter (the infant) with his partner, Tonya Piccola (the mother). The infant was born nearly three months premature, weighing almost three pounds, and spent thirty-nine days in the Neonatal ICU (NICU) before being released into the care of defendant and the mother. At the time the infant was released from the NICU, she weighed four pounds and nine ounces, indicating a normal rate of growth.

The infant, defendant, and the mother lived in a home (the home) along with the mother's five other children. In October 2012, the Stokes County Department of Social Services (DSS) received a report “with allegations of trash being around the home, children using the bathroom outside, and that the children's clothes were dirty and they smelled, and there was roaches in the home.” In response, Stokes County Social Services Child Protective Services Worker Lori Priddy (Priddy) visited the home. Although the children were home, neither defendant nor the mother was present. Priddy testified that she observed a toddler wearing a diaper full of urine with “feces running down both legs [.]” Later that day, Priddy returned to the home and met with both defendant and the mother. She inspected the home and noticed trash on the floor and on the bedroom mattresses, glass on the floor, and other general safety hazards. Priddy also saw the infant and described her as “very small for her age” and “never observed any sounds coming out of her.” Priddy advised the mother about the safety concerns that needed to be corrected in order for the children to remain in the home.

Priddy recommended to the mother that she arrange a doctor's appointment immediately for the infant. On 17 October 2012, Dr. Lucy Downey, an expert in the field of pediatric medicine, examined the infant. Dr. Downey noted that the infant was “[a]lert, content, very skinny, and small, and behind on her developmental screen.” The infant was diagnosed with “failure to thrive,” a severe condition defined by a child who is “behind on physical growth and development; and mental, intellectual, motor ... development.” Dr. Downey concluded that the “failure to thrive” condition was caused by environmental factors, such as failing to consume a sufficient amount of food.

After speaking with Dr. Downey regarding the infant's condition, Priddy filed a petition for custody of the infant. On 23 October 2012, Priddy went to the home to take custody of the infant. Priddy testified that defendant never asked where the infant was going or when he would be able to see her again, did not appear to be angry or upset, and was just quiet. The infant was subsequently placed with foster parents, Ted and Velvet Kitzmiller. A district court judge ordered weekly visitations in late 2012 for both defendant and the mother. Defendant did not appear for the 18 December 2012 visitation, which was the infant's first birthday and discontinued visitation all together in February 2013. In May 2013, the mother died from a heart attack.

On 26 October 2012, the infant appeared to have a fever, and the Kitzmillers took the infant to Brenner Children's Hospital. Dr. Jesse Pack examined the infant and described her as a “very, very small, emaciated, very small appearing child.” The State introduced a photo of the infant that was taken during her admission to the hospital on 26 October 2012, and Dr. Pack testified:

You get a sense again of how small, how emaciated she appears. Again, you can see, you can see the contours of her muscles here, indicating, medical term is wasting. Again, just a state of emaciation of her arms and of her legs. You can see that there's no subcutaneous fat there. You can see her ribs. And you also get a sense overall of how abnormally small she is for her age, keeping in mind that this is a child who's greater than 10 months old at the time that this photograph was taken.

Dr. Pack concluded that the infant suffered from “nutritional failure to [thrive] ... due to lack of nutrition.” Dr. Pack described the malnutrition as being “the most severe diagnosis” akin to “starvation.”

Defendant testified on his own behalf, stating that he was aware of the infant's small size, fed her consistently, and took her to various doctor appointments. Defendant also called four other witnesses, each of whom testified that defendant properly cared for the infant.

II. Analysis

a.) Motion to Continue

First, defendant argues the trial court committed prejudicial error by denying his motion to continue (the motion) because the denial violated his constitutional right to present a complete defense.

The rule is firmly established that ordinarily a motion for continuance is addressed to the sound discretion of the trial judge and his ruling is not subject to review on appeal in the absence of gross abuse. But when the motion is based on a right guaranteed by the Federal and State Constitutions, the question presented is one of law and not of discretion, and the decision of the court below is reviewable.

State v. Evans,40 N.C.App. 390, 390–91, 253 S.E.2d 35, 36 (1979) (citation omitted).

Because defendant contends that the denial of the motion violated his right to present a complete defense, a right guaranteed by the Constitution of the United States, we review this issue de novo. See State v. Cooper,–––N.C.App. ––––, ––––, 747 S.E.2d 398, 404 (2013), appeal dismissed, review denied,367 N.C. 290, 753 S .E.2d 783 (2014). Defendant carries the burden to establish that “the denial was erroneous and also that [the defendant] was prejudiced as a result of the error.” State v. Howard,158 N.C.App. 226, 229, 580 S.E.2d 725, 728 (2003) (citation omitted) (alteration in original).

i.) Timeliness of the Motion

Generally, a motion for a continuance in superior court “must be made within the time limitations stated in subsection (c) unless the court permits filing at a later time.”N.C. Gen.Stat. § 15A–952(b) (2013). Subsection (c), in relevant part, states:

Unless otherwise provided, [motions to continue] must be madeat or before the time of arraignment if a written request is filed for arraignment and if arraignment is held prior to the session of court for which the trial is calendared. If arraignment is to be held at the session for which trial is calendared, the motions must be filedon or before five o'clock P.M. on the Wednesday prior to the session when trial of the case begins.

If a written request for arraignment is not filed, then [motions to continue] must be filednot later than 21 days from the date of the return of the bill of indictment as a true bill.

N.C. Gen.Stat. § 15A–952(c) (emphasis added).

On the day of trial, defendant made an oral motion to continue the case:

The first motion, Your Honor, is a Motion to Continue this matter. Last month I subpoenaed some records from Medicaid regarding care that was provided to the child. Those records have not come back. The reason that that is material to this case is an issue in this case is the level of care that my client was providing to this child. My client has advised me that they had taken [the infant], ... who it's alleged to have been neglected, to numerous appointments that no medical records are showing up from Forsyth Pediatrics. He's advised they took her to other facilities. We don't have those records at this point. So that is a significant basis for our Motion to Continue. And we would move the Court that this is very material to his case, because it goes to the heart of the issue, of whether or not they provided, him being his ex-fiancée, the care that this child required.

I would point out to the Court that it was provided to us in the discovery from Department of Social Services, provided to us through the District Attorney, that there were no medical records for [the infant]. We since uncovered that there were in fact medical records. So we believe that there could be additional medical records beyond what we've already found. So that's the primary basis for the Motion to Continue.

Here, defendant made an oral motion to continue for the first time on 7 July 2014 before the jury was empaneled. Nothing in the record suggests that defendant made the motion at or before arraignment or previously filed the motion as mandated by N.C. Gen.Stat. § 15A–952(c). As such, the motion was not timely made. Defendant's failure to make the motion in a timely manner is sufficient grounds to deny the motion as a matter of law. See Evans,40 N.C.App. at 391, 253 S.E.2d at 36 (“By waiting until the session for which his trial was calendared and then making an oral motion to continue, defendant failed to comply with [N.C. Gen.Stat. §§ 15A951 and 15A–952 and] [d]efendant's failure to make a timely motion was in itself sufficient basis for its denial.”). Indeed, in denying the motion, the trial court stated: “the Motion to Continue was not ... timely filed; and had it been, then the State could have taken steps to avoid expense and unnecessary delay.”

ii.) Substance of the Motion

Even if we assume, without deciding, that defendant's constitutional rights were violated by denial of the continuance, the error was harmless beyond a reasonable...