State v. Perry
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NO. COA13-30 NORTH CAROLINA COURT OF APPEALS Filed: 20 August 2013 STATE OF NORTH CAROLINA Wake County No. 10 CRS 229194, 229112 v. JOHNATHAN BLAKE PERRY Appeal by defendant from judgment entered 5 June 2012 by Judge Michael J. O Foghludha in Wake County Superior Court. Heard in the Court of Appeals 22 May 2013. Attorney General Roy Cooper, by Assistant Attorney General Nicholaos G. Vlahos, for the State. Kathryn L. VandenBerg for Defendant-appellant. ERVIN, Judge. Defendant sentencing Johnathan him to a Blake term of Perry life appeals from imprisonment a judgment without the possibility of parole based upon his conviction for first degree murder. On appeal, Defendant argues that the trial court committed plain error by allowing the State s expert witnesses to express opinions to the effect that the injuries sustained by the alleged victim, J.W.,1 had been intentionally inflicted on the grounds that this testimony was not sufficiently reliable ; 1 J.W. will be referred to throughout the remainder of this opinion as Joan, a pseudonym used to protect the child s privacy and for ease of reading. -2that the trial court erred by denying his motion to dismiss the charge against him for lack of adequate evidentiary support; that his felony murder conviction cannot be properly predicated on his commission of felonious child abuse inflicting serious bodily injury; and that his conviction of first degree murder and resulting sentence of life imprisonment without possibility of parole are disproportionate and constitute cruel and unusual punishment. After careful consideration of Defendant s challenges to the trial court s judgment in light of the record and the applicable law, we conclude that the trial court s judgment should remain undisturbed. I. Factual Background A. Substantive Facts 1. State s Evidence a. Events of 7 December 2010 Joan was born on 29 September 2009 to Sebrina Wright, who had three other children. Although Defendant was Joan s father, he was not the father of any of her siblings. Defendant and Ms. Wright had little contact during the time that Ms. Wright was pregnant with Joan or the first year of Joan s life. However, Defendant moved in with Ms. Wright and her four children in September 2010. Joan was a healthy baby who developed normally and did not have significant medical problems. Yolanda Manson, Ms. Wright s -3sister, recalled Joan as a happy, outgoing baby, who drank from a cup and could pick herself up if she fell. Joan did not take any medications, had no problems eating, and was not known to choke on food or milk. Joan continued to appear happy and healthy during the first week of December 2010. On Monday, 6 December 2010, Joan behaved normally, smiling at family members and eating well. At that time, Joan was starting to use a drinking cup; however, she also used a bottle, which she was able to hold on her own. Although Joan initially appeared to be comfortable with Defendant, as time went on, Ms. Wright started to notice [that] she would scream a lot . . . when he would have her and that he was the only male that she really didn t favor. According to Ms. Wright, Defendant always thought [Joan] was real clingy to [Ms. Wright] and just didn t like the fact that she was so clingy[.] When Joan was Wright returned to work. approximately six months old, Ms. At that point, Ms. Wright s mother began watching Joan during the work day. After Defendant moved in, Ms. Wright s mother continued to watch Joan on most days. However, Defendant watched Joan once or twice on a rare occasion. At about 5:30 a.m. on Tuesday, 7 December 2010, Ms. Wright got up, changed Joan s diaper, and gave her a bottle of milk, -4which Joan drank normally. Ms. Wright did not see any bruising on Joan s legs or body at that time. Before she left for work, Ms. Wright woke Defendant, who was sleeping in the living room. Upon being awakened, Defendant moved into the bedroom where Joan was sleeping. At approximately 6:30 a.m., Ms. Wright departed with the three older children, leaving Defendant and Joan alone in the house. Ms. Wright spoke briefly with Defendant on the phone at approximately 11:30 a.m. on 7 December 2010. When Defendant held Joan up to the phone, Ms. Wright could hear her little baby talk and recalled that she just sounded normal. When Ms. Wright hung up in order to enter a bank branch, Defendant asked her to call back as soon as she emerged from the bank building. After depositing a check and leaving the bank, Ms. Wright called Defendant twice without receiving any answer. At the time of her third call, Defendant answered and told Ms. Wright that Joan was not breathing and was gone. Ms. Wright told Defendant to call 911, hung up, and drove home immediately, calling 911 herself as she drove. About five minutes after Wright arrived at her home. speaking with Defendant, Ms. At that time, she saw emergency medical services personnel carrying Joan, who was not moving and whose eyes were rolled back into her head, to an ambulance for -5transportation to Wake Medical Center. attempted to render personnel noted that assistance she was to At the time that they Joan, emergency unresponsive, not medical moving or breathing on her own, had no discernible pulse, and felt very limp and like a rag doll. After emergency medical services personnel moved Joan s tongue, she resumed an inadequate labored breathing. stimuli. However, she did not open her eyes or respond to In the ambulance, Joan was unresponsive, was only breathing about four times a minute, vomited a thin white fluid, and never regained consciousness. child, emergency Joan s blood medical sugar was In the course of treating the services normal, personnel that her determined airway was that not obstructed, that she was not on any sort of medication, that she did not have a fever or a history of seizures, and that she had not had any access to cleaning products or illegal drugs. According to Ms. Wright, Defendant was running back and forth arguing and fussing with the ambulance people. As a result, Captain Tony Pack of the Wake County Emergency Medical Services called upon police to restrain Defendant. When emergency workers asked Defendant what had happened, he said that he had given Joan a bottle, departed from the room while leaving Joan on the couch, and returned about eight minutes later to find her on the floor gargling, unresponsive, and not -6breathing. According to investigating officers, the carpeted floor upon which Defendant claimed that Joan had fallen was 18 inches below the couch seat and 24 inches below the couch arm. At the hospital, Joan began posturing, which is a term for stiffening of the extremities, a development that indicated that the [s]welling in the brain [had] reached a point that it s actually beginning to force the brain out of . . . the hole at the base of the skull. According to Vernon Hilliard, Jr., of the Eastern Wake County Emergency Medical Services, these symptoms generally occur almost immediately before death due to head trauma. After receiving initial treatment at Wake Medical Center, Joan was airlifted to the University of North Carolina Medical Center at around 4:00 p.m. on 7 December 2010. As they travelled between the two medical facilities, Ms. Wright asked Defendant What did you do? answer Ms. arrived at Defendant Wright s the walked question. University away. of An When North hour or Defendant did not investigating Carolina two officers Medical later, Ms. Center, Wright reiterated her question to Defendant, who, once again, failed to answer. However, Defendant did tell Melissa Williams of the Wake County Department of Human Services that he had put Joan on a sofa with a bottle; that, when he returned to the living room eight or ten minutes later, she was lying on the floor choking -7and with her eyes closed; that Ms. Wright had directed him to call 911 when she called and that he had not harmed Joan. Defendant later talked to investigating officers. At the University of North Carolina Medical Center, attending physicians drilled a small hole in Joan s forehead for the purpose of installing an intracranial pressure monitor and administered medications in an attempt to reduce the pressure resulting from the swelling in her brain. Unfortunately, these medical interventions could not reverse the damage caused by Joan s injuries. As a result, Joan was pronounced dead in the early morning hours of 9 December 2010. b. State s Expert Testimony Dr. Molly protection Berkoff, team at the the medical University of director North of the Carolina Center, came to the hospital on 7 December 2010. child Medical According to Dr. Berkoff, the most common injuries seen in children who have experienced abusive head injury, which is a term used to describe injuries to a child s head or brain that appear to have been intentional rather than accidental in origin, were intracranial hemorrhages and subdural hemorrhages, bleeding inside the brain, [] retinal hemorrhages or bleeding inside the eye, [and] subarachnoid edema or swelling inside the brain. Abusive head trauma is thought to be related to the child s -8brain being moved in a rotational way, not in one linear kind of direct manner but, instead, potentially as a result of shaking. As a result, the injuries typically associated with abusive head trauma differ from those that tend to be sustained in a simple linear fall. In Dr. Berkoff s opinion, having a child die as a result of a simple fall would be an extremely rare occurrence affecting less than .5 per million children. After arriving at the hospital, Dr. Berkoff consulted with the intensive care physicians, examined Joan briefly, and met with Defendant and Ms. Wright, who provided a history of the circumstances surrounding Joan s injury that was consistent with the other evidence presented at trial. thorough, bruises physical and exam, scratches on Dr. Berkoff Joan s During a second, more noted body, the presence of bruises on including Joan s thighs and abdomen which, according to Dr. Berkoff, were not [in] a typical location for a bruise in a toddler, and unusual marks and bruises on Joan s buttocks. In Dr. Berkoff s opinion, the bruising that she observed constituted further supporting evidence of trauma. head showed a subdural hematoma in her CAT scans of Joan s brain as significant swelling of her brain, cerebral edema. to Dr. Berkoff: [T]he most significant thing on these scans for [Joan] was the amount of cerebral edema well as According -9that she had, and . . . [the] subdural bleeding there as well. . . . I ve come to the conclusion they weren t from accidental means, for example, a simple fall. It was in a different location as well as being more extensive than what I typically see in cases where children have simple falls. Finally, Dr. Berkoff observed that Joan had extensive retinal hemorrhages in both eyes, which Dr. Berkoff considered to be more supporting evidence for her being diagnosed with abusive head trauma. In Dr. Berkoff s opinion, the location of where [Joan s] subdural was and the lack of a significant history of trauma for her made me conclude that her subdural [bleeding] was most likely a result of abusive head trauma in addition to the other findings that were identified from her clinical evaluation and her radiologic evaluation. Dr. Berkoff s opinion rested, in part, on the fact that the size and location of the bleeding in Joan s brain, in addition to the extensive swelling of Joan s brain, was not consistent with known cases involving simple falls. In reaching this conclusion, Dr. Berkoff noted that Joan had not only had this subdural which was concerning, but she also had massive looked swollen. retinal evidence cerebral her in which her whole brain Moreover, the fact that Joan had extensive hemorrhages for edema in being both eyes diagnosed provided with more abusive supporting head trauma. -10Finally, Dr. Berkoff noted that Joan s injuries seemed to have developed over a very short period of time[.] In Dr. Berkoff s opinion, Joan s injuries occurred after Ms. Wright heard her speaking normally at around 11:30 a.m., a conclusion which she reached based upon the rapid onset of symptoms resulting from abusive head trauma, and might have been caused by potentially either shaking or having a child s head strike an object or an object strike [r]eviewing a child s [Joan s] lab head[.] results, As the a result, different blood after tests that [Joan] had done, looking at her radiologic results, her Xrays, and the CT scans of her head that she had completed, [and] discussing the case with the other medical subspecialists and the treating team in the intensive care unit and considering the presence of multiple layers cerebral edema extensive of or the bilateral retinae swelling, in and retinal her a hemorrhages eyes, subdural in significant hemorrhage or hematoma in her brain and the fact that there was no evidence of any significant abnormalities that could explain these injuries, Dr. Berkoff concluded that Joan s injuries were caused by physical abuse, child physical abuse, with abusive head trauma. Dr. Berkoff rejected Defendant s claim that Joan had been injured in a fall for a number of reasons. Among other things, -11when a child is injured in a simple accidental fall, Dr. Berkoff would generally expect to see a very small collection of blood, a really tiny amount of blood in that child s brain. Although Dr. Berkoff had observed subdural hemorrhages or hematomas in children [who] subdural hematomas instances] have are [characteristic smaller and had or accidental hemorrhages different of] head [generally in abusive usually confined trauma, the found appearance trauma to a in types in from that particular of such those they are location. Similarly, retinal bleeding from natural causes is limited to small, very scattered few retinal hemorrhages in isolated layers of the retina from birth trauma and in children with certain illnesses. On the other hand, extensive retinal hemorrhages in all areas of the retina, having multiple retinal hemorrhages of the eye in all areas of the retina is something that you don t see from a simple fall in an otherwise healthy child. As a result, although Dr. Berkoff acknowledged on cross-examination that subdural hematomas, cerebral edemas, and retinal hemorrhages could result from an accidental injury, she did not believe that such an accident had occurred in this instance. Dr. Jonathan Privette, an associate chief medical examiner for the State of North Carolina, performed an autopsy on Joan s -12body. During that procedure, Dr. Privette observed small blunt force injuries to Joan s forehead and lip, bruises on both of Joan s hips, and a recently inflicted blunt force injury to Joan s ribs that was not consistent with the administration of CPR. After completing an external examination, Dr. Privette examined Joan s brain tissue and identified the injury caused by the insertion addition, Dr. of the Privette intracranial found at pressure least six monitor. other areas In of subdural bruising or bleeding that were not consistent with the medical treatment that Joan had received. Dr. Privette determined that Joan had sustained blunt force [head] injuries that caused impact or pressure significant enough to damage the tissue and cause blood to leak out into the soft tissues, with the various bruises being separate from one another, indicating that they were caused by separate applications of impact or pressure to Joan s skull. the back of An examination of the brain tissue in Joan s head revealed the presence of additional hematomas, including at least one that was so deep that the severity of the hemorrhage led Dr. Privette to conclude that it resulted from impact rather than mere pressure. In addition, Dr. Privette found a large quantity of blood and a degree of swelling in Joan s brain indicative of a significant injury. According to Dr. Privette, the degree of swelling and injury -13that he saw in Joan s brain was equivalent to the degree of trauma that was typically associated with injuries sustained in motor vehicle collisions. In Dr. Privette s opinion, Joan s injuries were inconsistent with those that he would expect to occur during a simple fall from a height of two feet. upon his cause autopsy of findings, [Joan s] Dr. injuries Privette and concluded Based the death subsequent that was nonaccidental head injury or a constellation of injuries not caused Although by an Dr. accident Privette which were acknowledged most on likely inflicted. cross-examination that accidental injuries can also cause cranial bruising, subdural hematomas, and swelling, he stated on redirect that, [i]n [his] opinion, a fall from a love seat onto a carpeted floor didn t cause these injuries or this constellation of injuries and that Joan s injuries might have resulted from blows by a human hand. Dr. University Thomas of Bouldin, North a Carolina professor medical of pathology school, at the reviewed Dr. Privette s autopsy report and conducted his own examination of Joan s eyes and brain. Dr. Bouldin observed recent subdural bleeding, which is typically caused by the rupture of blood vessels, and swelling of the brain, both of which are typically indicative of trauma to the brain. A microscopic examination of the tissues in both of Joan s eyes revealed the presence of -14multiple retinal hemorrhages that were not superficial hemorrhages but involve[d] multiple layers of the retina. In Dr. Bouldin s opinion, the combination of an acute subdural hematoma and the presence of retinal hemorrhages in a dead child in the absence of an alternative medical explanation for the child s death always raises very strongly the possibility of inflicted head injury. As was the case with Dr. Berkoff and Dr. Privette, Dr. Bouldin agreed that any one of the types of injuries that he observed during his examination considered in isolation, be accidental in origin. might, However, on redirect examination, Dr. Bouldin reiterated that the existence of a constellation of unexplained brain swelling, subdural hematoma, and retinal hemorrhages caused him to conclude that Joan s injuries were, most likely, intentionally inflicted. 2. Defendant s Evidence Dr. Donald Jason, an associate professor in the Department of Pathology examined the at Wake medical Joan s injuries. Forest and University investigative School reports of Medicine, relating to In Dr. Jason s opinion, Defendant s account of the events surrounding Joan s injuries was consistent with the possibility that Joan had fallen off the couch and landed on the back of her head, sustaining a concussion with consequent loss of [her] gag reflex, losing consciousness as the result of -15inhaling milk, and, for that reason, being unable to deliver oxygen to her brain for eight to ten minutes. Dr. Jason opined that the injuries to the back of Joan s head might have been caused by a short fall and that the bruises on her body were relatively minor and consistent with Joan s status as a toddler. In addition, Dr. Jason denied that retinal hemorrhages indicated that child abuse had occurred and opined that Joan s subdural hematoma was easily explainable intracranial pressure monitor. combination of retinal as resulting from the Dr. Jason testified that the subdural hemorrhage, subgaleal hemorrhage, and hemorrhage was not necessarily indicative of abuse because Joan s injuries could have occurred accidentally. In his experience, child abuse often resulted in skull and rib fractures, neither of which were present in this instance. Finally, Dr. Jason told the jury that the diagnosis of shaken baby syndrome was controversial and sometimes inaccurate and that none of Joan s injuries were intentional under the circumstances. Jason acknowledged that Dr. suspicious of being On cross-examination, Dr. Berkoff s notes indicated the presence of cerebral edema and subdural bleeding prior to the installation of an intracranial pressure bolt and conceded that the relevant medical literature indicated that fatal injuries rarely resulted from a short fall. -16B. Procedural History Warrants charging Defendant with felonious child abuse inflicting serious bodily injury and first degree murder were issued on 9 December and 10 December 2010, respectively. January 2011, indictment the charging Wake County Defendant grand with jury first returned degree On 4 bills murder of and felonious child abuse inflicting serious bodily injury. The charges against Defendant came on for trial before the trial court and a jury at the 29 May 2012 Criminal Session of Wake County Superior Court. On 4 June 2012, the jury returned verdicts finding Defendant guilty of first degree murder on the basis of the felony murder rule, with felonious child abuse inflicting serious bodily injury as the predicate felony, and felonious child abuse inflicting serious bodily injury. After arresting judgment in connection with Defendant s conviction for felonious child abuse inflicting serious bodily injury, the trial court entered a judgment sentencing Defendant to a term of life imprisonment without the possibility of parole based upon his conviction for first degree murder. Defendant noted an appeal to this Court from the trial court s judgment. II. Substantive Legal Analysis A. Admissibility of Expert Testimony In his first challenge to the trial court s judgment, Defendant argues that the trial court committed plain error by -17allowing the admission of unreliable and inaccurate testimony from the State s injuries. experts regarding the cause of [Joan s] More specifically, Defendant contends that the trial court should have precluded the admission of the testimony of Dr. Berkoff, Dr. Bouldin, and Dr. Privette because it was not sufficiently reliable given recent developments in [c]urrent medical science and that the trial court s failure to do so severely prejudiced him. We do not find this argument persuasive. When, as in this case, a defendant fails to object to the admission of the testimony at trial, we review only for plain error. State v. Moore, 366 N.C. 100, 105-06, 726 S.E.2d 168, 173 (2012) (citing N.C. R. App. P. 10(a)(4) (stating that, [i]n criminal cases, an issue that was not preserved by objection . . . may be made the basis of an issue presented on appeal when the judicial action questioned is specifically and distinctly contended to amount to plain error ); State v. Lawrence, 365 N.C. 506, 516, 723 S.E.2d 326, 333 (2012) (internal citation omitted); and State v. Odom, 307 N.C. 655, 659-60, 300 S.E.2d 375, 378 (1983)). The plain error rule: is always to be applied cautiously and only in the exceptional case where, after reviewing the entire record, it can be said the claimed error is a fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot -18have been done, or where [the error] is grave error which amounts to a denial of a fundamental right of the accused, or the error has resulted in a miscarriage of justice or in the denial to appellant of a fair trial or where the error is such as to seriously affect the fairness, integrity or public reputation of judicial proceedings or where it can be fairly said the instructional mistake had a probable impact on the jury s finding that the defendant was guilty. Moore, 366 N.C. at 106, 726 S.E.2d at 173 (quoting Odom, 307 N.C. at 660, 300 S.E.2d at 378 (internal quotation marks omitted) (quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir. 1982) (footnotes omitted), cert. denied, 1018, 103 S. Ct. 381, 74 L. Ed. 2d 513 (1982)). unpreserved defendant evidentiary must meet error the to burden constitute of U.S. In order for an plain showing examination of the entire record, the error 459 error, that, the after had a probable impact on the jury s finding that the defendant was guilty. Lawrence, 365 N.C. at 518, 723 S.E.2d at 334 (quoting Odom at 660, 300 S.E.2d at 378, and citing State v. Walker, 316 N.C. 33, 39, 340 S.E.2d 80, 83 (1986)). We will now apply this standard to evaluate the validity of Defendant s argument. The admission of expert testimony is governed by N.C. Gen. Stat. § 8C-1, Rule 702, which provides, in pertinent part, that: (a) If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to -19determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion, or otherwise, if all of the following apply: (1) The testimony is based upon sufficient facts or data. (2) The testimony is the product of reliable principles and methods. (3) The witness has applied the principles and methods reliably to the facts of the case. Although Defendant has not argued that any of the State s expert witnesses were not qualified to present expert testimony or that their testimony was based on insufficient data, he does argue that certain unreliable opinions given the presented current by the state State s of experts medical were research[.] Thus, Defendant s argument focuses on the proper application of N.C. Gen. Stat. § 8C-1, Rules 702(a)(2) and 702(a)(3). Although three review of their the of information the specific State s expert pertinent indicated areas expertise witnesses medical that of records Joan s testified and external varied, that other all their available bruises, retinal bleeding, and intracranial bleeding and swelling were consistent with previously observed cases involving intentionally inflicted injuries and were inconsistent with previously observed cases -20involving accidentally inflicted injuries, such as a simple fall as suggested in Defendant s statements. For example, Dr. Berkoff observed bruises and scratches on Joan s body, including unusual marks and bruises on her buttocks that were not in a typical location for bruises resulting from a toddler s fall. In addition, the extent and location of bleeding in Joan s brain, coupled with the extensive swelling of her brain, was not consistent with cases in which a child was known to have been injured as the result of a simple fall. Furthermore, Dr. Berkoff testified that the pattern of the subdural bleeding did not look like that in children that [she had] assessed after a simple fall. In Dr. Berkoff s experience, having a child die as a result of a simple fall would be an extremely rare occurrence. As a result, in light of the unusual bruising on Joan s body; the fact that she had unexplained extensive bilateral retinal hemorrhages in multiple layers of the retinae in her eyes, significant cerebral edema or swelling, and a subdural hemorrhage or hematoma in her brain; and the fact that Joan s injuries would be extremely unlikely to have resulted from a simple fall from a couch, Dr. Berkoff was of the opinion, to a reasonable degree of medical certainty, that Joan s injuries and death were caused by child physical abuse, with abusive head trauma. -21Similarly, Dr. Privette testified that he observed a recently inflicted blunt force injury to Joan s ribs that was not located occur. at a place where CPR-related bruising tends to Dr. Privette also determined that Joan had sustained a number of individual and separate blunt force injuries that resulted in impact or pressure significant enough to damage the tissue and cause blood to leak out into the soft tissues. The extent of the cerebral bleeding that he observed, separate from that associated with the intracranial pressure bolt, including at least one very deep hematoma, led Dr. Privette to conclude that this cerebral bleeding stemmed from an impact in which Joan s head either struck something or something struck [her] head rather than from mere pressure. In Dr. Privette s opinion, the type and degree of Joan s injuries were not typical of those generally seen as the result of a fall from a height of less than five feet. Instead, the degree of swelling and brain injury that Joan exhibited was similar to that seen in those injured in automobile collisions. Based upon his examination and findings, Dr. Privette testified that the cause of [Joan s] injuries and subsequent death was nonaccidental head injury or a constellation of injuries that were inflicted rather than caused by an accident. most likely -22Finally, Dr. Bouldin observed that Joan had multiple retinal hemorrhages that were not superficial hemorrhages but involve[d] multiple layers of the retina. Bouldin opined hematoma and that the the presence As a result, Dr. combination of of hemorrhages retinal an acute subdural in a dead child given the absence of any other medical explanation for the child s death always raises very strongly the possibility of inflicted head injury. Thus, the common thread in the State s expert testimony was that it would be highly unusual for a child to suffer serious injury or death as the result of a fall of floor; approximately that, at the two time feet of from her a sofa death, onto Joan had a carpeted sustained extensive and profound damage to her brain; that the nature and degree of her injuries was comparable to the sorts of serious trauma seen in a motor vehicle accident; and that, based upon the type, location, and severity of her injuries coupled with the absence of any alternative explanation for the nature and extent of those injuries, Joan s death most likely resulted from an intentionally inflicted injury. According to Defendant, the opinions of the State s experts concluding that [Joan s] injuries were intentionally inflicted rested on previously accepted medical science that is now in doubt and that, because [c]urrent medical science has cast -23significant doubt on previously accepted theories regarding the possible causes of brain injuries in children, there currently no medical certainty around these topics. is Based upon that set of assertions, Defendant contends that medical experts should be precluded from offering testimony such as that allowed by the trial court in this case. The fundamental deficiency in Defendant s argument is that it rests upon information that is not contained in the record developed before the trial court. The appellate courts can judicially know only what appears of record. This Court s review on appeal is limited to what is in the record or in the designated verbatim transcript of proceedings. State v. Price, 344 N.C. 583, 593, 476 S.E.2d 317, 323 (1996) (quoting Jackson v. Housing Authority of High Point, 321 N.C. 584, 586, 364 S.E.2d 416, 417 (1988), and State v. Moore, 75 N.C. App. 543, 548, 331 S.E.2d 251, 254, disc. rev. denied, 315 N.C. 188, 337 S.E.2d 862 (1985) (internal citation omitted)). In making our review and reaching our determination upon the facts of a particular case, we can judicially know only what appears of record on appeal and will not speculate as to matters outside the record. State v. Branch, 306 N.C. 101, 105, 291 S.E.2d 653, 657 (1982) (citing Tomlins v. Cranford, 227 N.C. 323, 42 S.E. 2d 100 (1947)). -24The record developed at trial contains no information concerning the state of current medical science or the degree to which significant doubt has arisen with respect to the manner in which brain injuries in young children occur. brief, Defendant supports his argument with In his citations to a recent dissenting opinion in which Justice Ginsberg expressed doubts about shaken baby syndrome and to a 2009 law review article, neither of which rest upon evidence presented to the trial court and neither of which are binding upon this Court. Although Defendant contends that the current state of medical research in the diagnosis of head injuries in children rendered the testimony of the State s witnesses unreliable, we cannot evaluate the validity of this claim in the absence of record evidence establishing what the current state of medical research into the subject of childhood head injuries actually is. While Defendant is correct in reminding us that, when a trial court is presented with compelling new perspectives on otherwise settled theories or techniques, Howerton v. Arai Helmet, Ltd., 358 N.C. 440, 460, 597 S.E.2d 674, 687 (2004), it should look beyond precedent to determine whether an expert s area of testimony is sufficiently reliable, the trial court was simply not presented with any such evidence in this case and did not, for that reason, have any opportunity to determine whether -25accepted medical thinking on the issues relevant to this case had changed. Moreover, Defendant s contention that aspects of the testimony of the State s witnesses conflicted with certain autopsy findings and with other medical facts and that there were contradictions and inconsistencies among the testimony offered by the State s experts ignores well-established North Carolina law to the effect that [d]iscrepancies and contradictions in the evidence are for the jury to resolve. State v. Hendrix, 19 N.C. App. 99, 101, 197 S.E.2d 892, 893 (1973). Finally, Defendant s contention that the testimony of Dr. Privette and Dr. Bouldin was overly speculative cannot be deemed persuasive in light of the detailed reasons that they gave in support of the conclusions that they reached. As a result, court Defendant has failed to show that the trial committed plain error by admitting the testimony of the State s expert witnesses, so he is not entitled to relief on the basis of this claim. B. Sufficiency of the Evidence Secondly, Defendant argues that the trial court erred by denying his motion insufficiency contends that of the the to dismiss the evidence. evidence was More charge against specifically, insufficient to him for Defendant show that [Joan s] injuries were intentionally inflicted; that [Defendant] -26used his hands as deadly weapons; and that the injuries occurred at the time [Defendant] was caring for [Joan]. Defendant s argument lacks merit. In reviewing determine whether a motion there to is dismiss, substantial this Court evidence of must each essential element of the offense charged, or of a lesser offense included therein, and of the defendant s being the perpetrator of such offense. Substantial evidence has been defined as that amount of relevant evidence that a reasonable mind might accept as adequate to support a conclusion. Further, the evidence should be considered in the light most favorable to the State and the State is entitled to every reasonable inference to be drawn therefrom. evidence are dismissal. for Any contradictions or discrepancies in the resolution State v. by the jury and Carrilo, 149 N.C. do App. not 543, warrant 548, 562 S.E.2d 47, 50 (2002) (quoting State v. Bates, 313 N.C. 580, 581, 330 S.E.2d 200, 201 (1985), and State v. Porter, 303 N.C. 680, 685, 281 S.E.2d 377, 381 (1981) Further, if the trial court inference of the defendant s (other determines guilt may citation that be a drawn omitted)). reasonable from the evidence, it must deny the defendant s motion and send the case to the jury even though the evidence may also support reasonable inferences of the defendant s innocence. State v. Wright, 127 -27N.C. App. 592, 597, 492 S.E.2d 365, 368 (1997) (citing State v. Scott, 323 N.C. 350, 353, 372 S.E.2d 572, 575 (1988)), disc. review denied, 347 N.C. 584, 502 S.E.2d 616 (1998). N.C. Gen. Stat. § 14-17(a) provides, in pertinent part, that any murder which shall be committed in the perpetration or attempted perpetration of any arson, rape or a sex offense, robbery, kidnapping, burglary, or other felony committed or attempted with the use of a deadly weapon shall be deemed to be murder in the first degree[.] [F]elonious child abuse committed with the use of a deadly weapon may serve as the underlying felony for felony murder purposes [in the event that the State proves] beyond a reasonable doubt that defendant actually intended to commit the underlying offense (felonious child abuse) with the use of [his] hands as a deadly weapon[.] State v. Krider, 145 N.C. App. 711, 714, 550 S.E.2d 861, 863 (2001) (citing State v. Jones, 353 N.C. 159, 168, 538 S.E.2d 917, 925 (2000), and State v. Pierce, 346 N.C. 471, 493, 488 S.E.2d 576, 589 (1997)), appeal dismissed, 355 N.C. 219, 560 S.E.2d 150 (2002). According to N.C. Gen. Stat. § 14-318.4(a), [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 -28commits an assault upon the child which results in any serious physical injury to the child is guilty of a Class E felony[.] Specific-intent crimes are crimes which have as an essential element a specific intent that a result be reached. Generalintent crimes are crimes which only require the doing of some act. Felonious child abuse requires the State to prove that the accused intentionally inflicted a serious physical injury upon the child or intentionally committed an assault resulting in a serious physical injury to the child. The State is not required to prove that the defendant specifically intended that the injury be serious. Felony murder on the basis of felonious child abuse requires the State to prove that the victim was killed during the perpetration or attempted perpetration of felonious child abuse with the use of a deadly weapon. See N.C. [Gen. Stat.] § 14-17. This crime does not require the State to prove any specific intent on the part of the accused. Pierce, 346 N.C. at 494, 488 S.E.2d at 589 (quoting State v. Jones, 339 N.C. 114, 148, 451 S.E.2d 826, 844 (1994), cert. denied, 515 U.S. 1169, 115 S. Ct. 2634, 132 L. Ed. 2d 873 (1995); State v. Elliott, 344 N.C. 242, 278, 475 S.E.2d 202, 218-19 (1996), cert. denied, 520 U.S. 1106, 117 S.Ct. 1111, 137 L.Ed.2d 312 (1997); and State v. Campbell, 316 N.C. 168, 172, 340 S.E.2d 474, 476 (1986)). As a result, [f]elony murder on the basis of felonious child abuse requires the State to prove that the killing took place while the accused was perpetrating or attempting to perpetrate felonious child abuse with the use -29of a deadly weapon. See N.C. [Gen. Stat.] § 14-17. When a strong or mature person makes an attack by hands alone upon a small child, the jury may infer that the hands were used as deadly weapons. Pierce, 346 N.C. at 493, 488 S.E.2d at 589 (citing Elliott, 344 N.C. at 268-69, 475 S.E.2d at 213 and State v. Lang, 309 N.C. 512, 527, 308 S.E.2d 317, 325 (1983)). Moreover, when 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. 182, 186, 576 S.E.2d State v. Liberato, 156 N.C. App. 118, 120-21 (2003) (citing State v. Riggsbee, 72 N.C. App. 167, 171, 323 S.E.2d 502, 505 (1984)). A careful examination of the record evidence considered in the light most favorable to the State tends to show that Joan was a normal, healthy baby who had no medical problems in the days leading up to her death. By the age of fourteen months, Joan could walk, drink from a cup and hold a bottle, and had no tendency to choke when consuming food or drink. After Defendant moved in with Ms. Wright, Joan started to . . . scream a lot when Defendant held her, while Defendant just didn t like the fact that Joan tended to cling to her mother. The record further reflects that, on the morning of 7 December 2010, Joan -30had no visible bruises, ate normally and appeared healthy. After Ms. Wright left the house on the morning of 7 December 2010, Defendant was the only adult in the house with Joan. Although Joan sounded normal when Ms. Wright heard her over the phone at around 11:30 a.m., Defendant told Ms. Wright that Joan was not breathing and was gone about 30 minutes later. At the time that emergency medical services personnel arrived, Joan was unconscious, unresponsive, and barely breathing. By the time that an ambulance carrying Joan reached the hospital, Joan had started to seize and posture, indicating that she had a grave, potentially fatal, condition. Although Joan was treated at Wake Medical Center and University of North Carolina Medical Center, she never regained consciousness and was pronounced dead early on 9 December 2010. revealed the An external examination of Joan s body presence of bruises and scratches, including unusual bruises on her buttocks that were not typical of the bruises that usually resulted from a toddler s fall and a recently inflicted blunt force injury to her ribs that did not appear to have resulted from the administration of CPR. internal examination showed that Joan had suffered An extensive bilateral retinal hemorrhages in multiple layers of the retinae in her extensive eyes, significant bleeding or cerebral subdural edema hemorrhage or swelling, in her and brain, -31indicating that Joan s head had been subjected to a number of individual and separate blunt force injuries that were sufficiently significant to damage Joan s brain and to cause a leakage of blood. Joan s injuries, which could have been caused by human hands, did not result from medical treatment or a mere fall from a couch onto a carpeted floor. According to the State s evidence, it would be an extraordinarily rare occurrence for a child to die from a two to three foot fall, and the size, location, and degree of Joan s subdural hematoma and edema and the fact that Joan exhibited the presence of extensive retinal hemorrhages were inconsistent with the minor injuries that are typically sustained in a fall and are more consistent with the sort of injuries that are typically sustained in a motor vehicle accident. The record evidence which we have summarized in this paragraph is more than sufficient to support a jury determination that Defendant had exclusive custody of Joan at the time that she suffered fatal injuries, that her injuries were neither self-inflicted nor accidental, and that Defendant s account relevant of what medical had happened evidence. to Joan conflicted For that reason, with the the record contained sufficient evidence to allow the jury to find that Defendant had intentionally assaulted Joan while using his hands as deadly weapons and that Joan sustained fatal injuries as a -32result of this assault. Therefore, we conclude that the trial court did not err by denying Defendant s dismissal motion. In seeking to persuade us to reach a different result, Defendant argues that the State did not adduce evidence that Joan s injuries accidental. were intentionally inflicted, rather than However, Dr. Berkoff specifically testified that, in her opinion, Joan s death resulted from abusive head trauma. In addition, both Dr. Privette and Dr. Bouldin testified that Joan s death likely resulted from an intentional rather than an accidental injury. Thus, the record contains ample evidence tending to show that Joan s injuries were intentionally, rather than accidentally, inflicted. Secondly, Defendant directs our attention to evidence that differentiates this case from other similar cases in which we have held that the evidence was sufficient to support a conviction, and to evidence that in Defendant s view tended to show Defendant s innocence. For example, Defendant points to the fact that the record did not reveal the existence of a longterm history of abuse, that Defendant gave a consistent account of what happened on the morning of Joan s death, and that Dr. Jason testified that the injuries which Joan sustained could have been of accidental origin. However, as we have previously discussed, the fact that the record contains evidence that tends -33to contradict the evidence presented by the State does not justify the dismissal of a criminal charge for insufficiency of the evidence. Similarly, Defendant argues that the record does not contain sufficient evidence to permit the jury to find that he used his hands as a deadly weapon. In support of this argument, Defendant places principal reliance on a comparison of the facts in this case with the facts present in other cases in which a defendant s hands have been found to be a deadly weapon, noting that, in each of these cases, either the defendant admitted to having used his hands to injure a child or there was additional evidence bearing on the hands as a deadly weapon issue. In light of the testimony given by the State s expert witnesses that Joan suffered severe injuries that were traumatic in origin, that Joan s death resulted from these injuries, that the injuries which Joan had sustained could have been caused by human hands, and that, until the morning of 7 December 2010, Joan was a normal, healthy, and uninjured child, we hold that the record support a contained sufficient determination that circumstantial Defendant used his evidence hands as to a deadly weapon. Moreover, establish that Defendant Joan s argues injuries that the occurred State when failed she was to in -34Defendant s exclusive custody. However, Dr. Berkoff testified that after Joan s injuries occurred Ms. Wright heard Joan speaking normally at around 11:30 a.m. on 7 December 2009 given the rapid trauma. onset of symptoms resulting from abusive head The undisputed evidence reflects that Joan was in the exclusive custody of Defendant during the time between his 11:30 a.m. phone call with Ms. Wright and the time at which Joan s injuries were reported services personnel. to Ms. Wright Although and Defendant emergency argues that medical certain medical literature suggests that a child may have a lucid interval of up to 72 hours after an injury, no such evidence was offered at trial. Even if such evidence had been presented for the jury s consideration, weight rather than the such sufficiency evidence would go to the of the State s evidence. Finally, Defendant s citation to State v. Reber, 71 N.C. App. 256, 321 S.E.2d 484 (1984), disc. review denied, 313 N.C. 335, 327 S.E.2d 897 (1985), is unavailing in that, in Reber, unlike this case, none of the expert witnesses testified that the child s injuries had occurred during the time when she was alone with the defendant. Thus, we conclude that there was sufficient evidence an to allow inference that Joan s injuries were sustained while she was in Defendant s exclusive custody. As a -35result, the trial court did not err by denying Defendant s dismissal motion. C. Felony-Murder Charge Predicated on Felonious Child Abuse Thirdly, Defendant argues that, under the merger doctrine, felony child abuse is not a viable underlying felony sufficient to support a conviction for first degree murder under the felony murder rule. Although Defendant acknowledges that this issue has been decided adversely [to his position] by the Court of Appeals, he review. However, we lack the authority to provide Defendant with further the has raise[d] review the that he claim seeks. for potential According further to well- established law, [w]here a panel of the Court of Appeals has decided the same issue, albeit in a different case, a subsequent panel of the same court is bound by that precedent, unless it has been overturned by a higher court. In re Appeal of Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989). As a result, this Defendant is not entitled to relief based on challenge to the trial court s judgment. D. Cruel and Unusual Punishment Finally, Defendant argues that his conviction and resulting sentence of life imprisonment without the possibility of parole are disproportionate and constitute cruel and unusual -36punishment in violation of the Eighth Amendment to the United States Constitution. Defendant s argument lacks merit. The Eighth Amendment states: Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. The central to the Eighth Amendment. concept of proportionality is Embodied in the Constitution s ban on cruel and unusual punishments is the precept of justice that punishment for crime should be graduated and proportioned to [the] offense. Graham v. Florida, 560 U.S. 48, __, 130 S. Ct. 2011, 2021, 176 L. Ed. 2d 825, 835 (2010) (quoting Weems v. United States, 217 U.S. 349, 367, 30 S. Ct. 544, 54 L. Ed. 793 (1910)). In determining whether a particular sentence is categorically disproportionate, the United States Supreme Court has used categorical rules to define Eighth Amendment standards which consider both the nature of an offense and the offender characteristics, and has concluded, among other things, that capital punishment is impermissible for offenses other than homicide, for offenders who committed a homicide before the age of eighteen, functioning. or for persons with very low intellectual Id. Defendant does not argue that imposition of a sentence of life imprisonment without the possibility of parole for the offense of first degree murder is categorically impermissible, -37or that he is a member of a category or class of offender for whom such a sentence would violate the Eighth Amendment. Moreover, the Supreme Court has held that neither imposition of a life sentence nor imposition of consecutive life sentences for first-degree murder constitutes cruel and unusual punishment. State v. Bronson, 333 N.C. 67, 81, 423 S.E.2d 772, 780 (1992). In addition, North Carolina courts have consistently held that when a statute, punishment the does not punishment exceed cannot be unusual in a constitutional sense. the limits fixed classified the cruel as by and State v. Evans, 162 N.C. App. 540, 544, 591 S.E.2d 564, 567 (2004) (citation omitted). According to N.C. Gen. Stat. § 14-17(a), a murder committed during the commission of certain categories of felonies constitutes first degree murder, which is a Class A offense. N.C. Gen. Stat. § 15A-1340.17(c) provides that, upon conviction of a Class A offense, a defendant shall be sentenced to life imprisonment without parole or death[.] Thus, the sentence imposed upon Defendant was authorized by statute. Once again, as we have already noted, this Court is bound by its previous decisions. As a result, given that the sentence imposed upon Defendant was authorized by the relevant statutory provisions, it cannot be classified constitutional sense. as cruel and unusual in a Evans, 162 N.C. App at 544, 591 S.E.2d -38at 567. Thus, Defendant is not entitled to relief on the basis of a categorical challenge to his sentence. In addition, Defendant urges this court to find that, even if his sentence is constitutional under the principle enunciated in the crime preceding paragraph, it is not proportionate to the committed. In support of this contention, Defendant directs our attention to the proportionality review conducted in capital cases and urges us to conduct a similar review in this case. We conclude that Defendant has failed to establish a right to relief based on the argument that his sentence, while generally permissible for the crime of first degree murder, is disproportionate when applied to his individual circumstances. The controlling opinion in Harmelin explained its approach for determining whether a sentence for a term of years is grossly disproportionate for a particular defendant s crime and directed that a court must begin by comparing the gravity of the offense and the severity of the sentence. Graham, 560 U.S. at __, 130 S. Ct. at 2022, 176 L. Ed. 2d at 836 (citing Harmelin v. Michigan, 501 U.S. 957, 1005, 111 S. Ct. 2680, 2707, 115 L. Ed. 2d 836, 871 (1991) (opinion of Kennedy)). Only in exceedingly rare noncapital cases will sentences imposed be so grossly disproportionate as to be considered cruel or unusual. State v. Green, 348 N.C. 588, 609, 502 S.E.2d 819, 832 (1998) -39(citing Rummel v. Estelle, 445 U.S. 263, 272, 63 L. Ed. 2d 382, 389, 100 S. Ct. 1133 (1980) (other citation omitted), cert. denied, 525 U.S. 1111, 119 S.Ct. 883, 142 L.Ed.2d 783 (1999). We see no basis, given the facts surrounding the crime for which Defendant has been convicted, for concluding that this is one of the exceedingly rare noncapital cases in which the sentence imposed is grossly disproportionate to the crime for which Defendant stands convicted. In urging us to reach a different result, Defendant argues, among other things, establish conclusively contends that his that the the record guilt. evidence For against him evidence fails example, was to Defendant circumstantial, repeats his argument that the expert testimony presented by the State was contrary to medical facts and current research, and reiterates injuries that could addition, his have Defendant expert been directs witness the our result testified of an attention to that Joan s accident. other In felonious child abuse cases that, in his opinion, were more egregious than this case. However, the evidence presented in this case by the State, which the jury clearly believed, tended to show that Defendant intentionally inflicted a number of severe and traumatic injuries to the head and body of a previously healthy fourteen month old child, causing massive swelling and bleeding -40in and around the brain, extensive retinal hemorrhaging, and death. As a result, we see no basis for concluding that Defendant s sentence was so disproportionate as to constitute prohibited cruel and unusual punishment. III. Conclusion Thus, for the reasons set forth above, we conclude that none of Defendant s challenges to the trial court s judgment have merit. As a result, the trial court s judgment should, and hereby does, remain undisturbed. NO ERROR. Judges ROBERT C. HUNTER and STROUD concur.
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