State v. Reber

321 S.E.2d 484 (1984)

STATE of North Carolina v. Crawford Drew REBER.

No. 8423SC93.

Court of Appeals of North Carolina.

November 6, 1984.

*485 Atty. Gen. Rufus L. Edmisten by Associate Atty. Gen. Debra K. Gilchrist, Fayetteville, for the State.

Appellate Defender Adam Stein by Asst. Appellate Defender Malcolm R. Hunter, Jr., Raleigh, for defendant-appellant.

PHILLIPS, Judge.

The sole question raised by this appeal is whether all the evidence presented at trial was sufficient to establish defendant's guilt of the offense charged. The State mistakenly contends that this question is not properly before us because defendant, after moving to dismiss at the end of the State's case, introduced evidence and did not "renew" his motion to dismiss at the end of all the evidence. Since this *486 same contention has been made in several other criminal appeals recently, we point out that a defendant's failure to either "renew" his motion at the end of the evidence, or even make a motion to dismiss for the first time, does not affect his right to contend on appeal that the evidence presented by both parties was insufficient to warrant his conviction. First of all, a motion to dismiss made at the end of the State's evidence cannot be "renewed," as that word is usually understood, after the defendant has put on evidence; and using that misnomer tends to confuse a matter that is really quite simple when the statutes are examined. For as G.S. 15-173 makes crystal clear, the right that a defendant in a criminal case has to test the sufficiency of just the State's evidence, under a motion for nonsuit or dismissal made at the end of the State's evidence, is lost for good and all, never to be revived by any motion whatever, when he puts on evidence, and any motion made thereafter tests all the evidence, rather than just the State's. And as G.S. 15A-1227(d) and G.S. 15A-1446(d)(5) make equally clear, in appealing a criminal case a defendant has a right to question the sufficiency of all the evidence to convict him, even though no motion to dismiss was either made or "renewed" during the entire course of the trial. Since this defendant properly assigned as error the court's failure to dismiss the case at the close of all the evidence because the evidence presented was insufficient to convict him of the crime charged, he is entitled to our judgment with respect thereto.

To validly convict the defendant under the indictment lodged against him, the State had to prove that he intentionally inflicted a serious injury on the three and a half month old child, which resulted in the substantial impairment of the child's physical health. G.S. 14-318.4. The only element of the offense that the evidence presented tends to establish is that the child's health has been seriously impaired by an injury of some kind; it does not tend to show that the injury received by the child was inflicted by the defendant or that he inflicted such injury intentionally. State v. Byrd, 309 N.C. 132, 305 S.E.2d 724 (1983). Nor is this gap in the evidence filled by the rather extensive opinion testimony of Dr. Sinal, which we accept at face value, in its most favorable light for the State, as the law governing appeals of this type requires. State v. Earnhardt, 307 N.C. 62, 296 S.E.2d 649 (1982). Because even if the child had all the signs and symptoms of an abused child and it was proper to infer therefrom, as Dr. Sinal opined, that the child had not been injured accidentally, but intentionally, it cannot be inferred from that inference that defendant is the one who injured the child and did so intentionally. The State's argument that the child's good condition when Mrs. Reber left to use the neighbor's telephone and its bad condition a few minutes later established that defendant injured the child, since he was the only adult there, is without merit. If the injury had been a broken bone that was sound ten minutes earlier, the argument would be persuasive. But the injury in this instance, to blood vessels deep in the skull, was invisible, and the evidence does not show when or how it occurred. None of the doctors, including Dr. Sinal, expressed the opinion that the injury that caused the hemorrhaging of the blood vessels happened during the brief interval while Mrs. Reber was gone, or even that Sunday. The possible time of the hemorrhaging was alluded to only by Dr. Weaver, who testified that he had no way of knowing how long the blood in the eyes, which came from the injured brain, had been there. And though Dr. Sinal expressed the opinion that the injury may have resulted from a violent shaking of the child, there was no evidence that defendant had ever shaken the child, violently or otherwise. Furthermore, as Dr. Weaver testified, "[t]here are many causes of increased intercranial pressure," which can result in the condition that the child was in. Thus, the verdict that defendant intentionally injured the child that Sunday morning was based on speculation and conjecture, not evidence, and cannot stand. State v. Vestal, *487 278 N.C. 561, 180 S.E.2d 755 (1971), cert. denied, 414 U.S. 874, 94 S. Ct. 157, 38 L. Ed. 2d 114 (1973).

We therefore vacate the judgment of conviction and direct that a judgment of acquittal be entered.

Vacated and remanded.

HEDRICK and BECTON, JJ., concur.